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Legal Framework for Child Protection

Scope of this chapter

The aim of this chapter is to provide the broad legal context within which work with children and families takes place, including when action to protect a child can be taken. However, when working with individual cases, practitioners should always seek legal advice in relation to the application of the law to the particular case.

Child Protection is underpinned in full through the United Nations Convention for the Rights of the Child (UN 1989) which gives children aged up to 18 the rights to be protected; to be provided for and to participate in decisions which affect their lives. These rights are implemented through the laws and regulations in this chapter.

Section 1 of the Children Act 1989 sets out a number of principles which any Court shall have regard to when determining whether or not to make an Order.

  1. When a Court determines any question with respect to the upbringing of a child, the child's welfare shall be the Court's paramount consideration [Section 1(1)];
  2. In all proceedings, there is a presumption that any delay in reaching a decision is prejudicial to the child's welfare [Section 1(2)];
  3. The Court shall not make an Order unless it considers that doing so would be better for the child than making no Order at all. In other words, the Court will have to look at all the practical alternatives - including making no Order - in addition to the purpose that any Order would serve - before making an Order [Section 1 (5)].

In addition, section 1(3) sets out the welfare checklist which has to be considered before making any Orders other than emergency orders.

The matters on the checklist are:

  1. The ascertainable wishes and feelings of the child (considered in light of his or her age and understanding);
  2. The child's physical, emotional and educational needs;
  3. The likely effect on the child of any change in circumstances;
  4. The child's age, sex, background and any characteristics which the Court considers relevant;
  5. Any harm which the child has suffered or is at risk of suffering;
  6. How capable each of the child's parents (and any other person in relation to whom the Court considers the question to be relevant) is of meeting the child's needs;
  7. The range of powers available to the Court in the proceedings in question.

Section 3 of the Children Act 1989 introduces the concept of Parental Responsibility. A local authority which has obtained an Order giving it parental responsibility (i.e. an Emergency Protection, Interim Care Order or Care Order) shares parental responsibility with the child's parents, restricting the parents' exercise of their parental responsibility to the extent required to safeguard or promote the child's welfare.

The Act emphasises that the primary responsibility for looking after children rests with parents and the local authority's role is to help them fulfil this responsibility, even if it has been restricted by a Court Order. Under these circumstances, local authorities are required to do all that is reasonable to keep parents informed, keep them involved in decision-making and promote contact with their children.

The Act tries to find a proper balance between the need to promote the welfare of the child, and the need to respect the rights of parents. This is seen particularly in the various legal safeguards which families have, especially when Court Orders are being made. This balance is reflected in the provisions of the Human Rights Act 1998.

Under Section 17 [10] of the Children Act 1989, a child is in "need" if:

  1. He/she is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him/her of services by a local authority;
  2. His/her health or development is likely to be significantly impaired, or further impaired, without the provision for him/her of such services; or
  3. He/she is disabled.

Section 17 of the Children Act 1989 gives local authorities a general duty to safeguard and promote the welfare of children in need and to promote the upbringing of such children by their parents, so far as this is consistent with their welfare duty to the child, by providing an appropriate range and level of services. Partnership with parents, consultation with children, involving extended families and careful joint planning and agreement are the guiding principles for the provision of services to children and their families within the family home or where children live elsewhere under voluntary and statutory arrangements.

A local authority is under a duty to investigate in the following circumstances:

  1. When a Court in family proceedings directs that a local authority investigate a child's circumstances [Section 37(1)];
  2. Where the local authority is informed that a child who lives, or is found, in its area is the subject of an Emergency Protection Order (granted to a person other than the Local Authority) or is in Police Protection or has contravened a ban imposed by a curfew notice made under the Crime and Disorder Act 1998 [Section 47(1) (a)]. (Under the Crime and Disorder Act 1998, there is provision for local curfew schemes which allow local authorities to ban children of specified ages (under 10) from being in a public place during specified hours).
  3. Where a local authority is informed, or has cause to suspect, that a child living in their area has suffered Significant Harm or is likely to suffer such harm [Section 47(1) (b)].

In such circumstances, the local authority's duty is to make (or cause to be made) enquiries with a view to enabling them to determine what action, if any, to take with respect to the child.

These enquiries must be directed particularly towards establishing whether the local authority should make an application to the Court, for example for an Emergency Protection Order, or exercise any of their other powers under the Children Act with respect to the child.

Under Schedule 2 paragraph 5 of the Children Act 1989, a local authority may provide accommodation for a person who voluntarily leaves premises where a child is suffering or likely to suffer ill-treatment from him or her. This provision may assist in making arrangements to safeguard a child without having to disrupt the child's living arrangements.

In a case where a child is suffering or likely to suffer significant harm and alternative arrangements need to be made for the child's care, the local authority have a discretion to decide whether the provision of accommodation for the child by agreement with the parents under Section 20 of the Children Act 1989 is sufficient to safeguard the welfare of the child, or whether an application for a Care or Supervision Order is necessary. The term 'Accommodated Child' refers to a child for whom the local authority has provided accommodation under section 20. Work with parents to achieve an initial agreement regarding accommodation of the child by the local authority will usually ensure that the on-going plan for the child can be operated in partnership with the parents. However, where, for example, a parent is unwilling to co-operate at the outset, or becomes uncooperative or inconsistent in attitude or commitment to the child, the nature of the arrangement should be reassessed, and the need for care proceedings or even emergency protective action should always be considered.

Under section 47(5A) of the Children Act 1989, (inserted by the Children Act 2004), the local authority has a duty to ascertain, take account of and give serious consideration to the child's wishes and feelings. This reinforces the principles of involving the child in decision-making, which is enshrined in the Children Acts 1989 and 2004, and the Adoption and Children Act 2002.

The Children Act 1989 and the United Nations Convention for the Rights of the Child set out the following:

  • Decisions about the child must be in their best interest (UNCRC Article 3);
  • Practitioners must ascertain, take account of and give serious consideration to the child's views, wishes and feelings and must presume that the child can communicate these (UNCRC Article 12);
  • As the child develops and their capacity grows, the amount of say they have will usually increase, dependent on the risk involved (UNCRC Article 5);
  • The views and experiences of children about the child protection system and services should be gathered, analysed and used to make improvements.

Note: Working Together to Safeguard Children emphasises the importance of keeping the focus on the child and his or her safety and welfare, understanding the daily life experience of the child, seeing the child alone where appropriate and using information about the family's history and functioning to inform decision making. It also stresses the importance of analysing the inter-relationships between strengths and protective factors and vulnerabilities and risk factors when deciding whether a child is suffering or likely to suffer significant harm, and of the accurate recording of actions.

Where a local authority conducts Section 47 Enquiries, it shall be the duty of other agencies listed below to assist them in those enquiries if called upon by the authority to do so (under Section 47).

The agencies concerned are:

  • Any local authority;
  • Any local education authority;
  • Any local housing authority;
  • Any health authority;
  • Other persons authorised by the Secretary of State for the purposes of this Section.

An application can be made under Section 43 of the Children Act 1989 by a local authority or an authorised person (e.g. the NSPCC) where there is reasonable cause to suspect that a child is suffering or likely to suffer Significant Harm. Where such an application is made, the Court may make a Child Assessment Order if it is satisfied that an assessment of the state of the child's health or development, or the way in which he/she has been treated, is required to determine whether or not he/she is suffering, or is likely to suffer, significant harm. The Court may make an Emergency Protection Order instead of a Child Assessment Order, if it is satisfied that there are grounds for doing so and that such an Order ought to be made.

This is not an Order to deal with emergency situations and the applicant for a Child Assessment Order must ensure that prior notice of the application is given to the child, his/her parents, any other person who has parental responsibility for him/her or with whom he/she is living or being cared for by and a person in whose favour an Order relating to contact is in force in respect of the child.

Child Assessment Orders, which, unlike Emergency Protection Orders, may be appealed against, must specify the date on which the assessment is to begin and will have effect for a maximum of seven days from that date. They do not authorise an assessment which the child refuses to undergo (provided he/she is of sufficient understanding to make an informed decision). If, exceptionally, the child is to be kept away from home during an assessment, the Order may contain directions as to the contact which is to be allowed with other people.

A Child Assessment Order may specify the person to whom the child is to be produced by any person who is in a position to do so.

There is a range of powers available under the Family Law Act 1996 which may allow a perpetrator to be removed from the home, instead of having to remove the child. These will be particularly relevant in cases of domestic abuse.

Exclusion requirements can be used in the context of Interim Care Order (under Section 38A of the Children Act 1989) and Emergency Protection Order applications although it should be noted, that as an alternative, undertakings may be given to the Court by the excluded person.

For the Court to include an exclusion requirement in an Order, it must be satisfied that:

  • There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer or cease to be likely to suffer significant harm; and
  • Another person living in the home is able and willing to give the child the care which it would be reasonable to expect a parent to give, and consents to the exclusion requirement.

In an emergency, the local authority, the NSPCC, a Police Officer or any other person can apply under Section 44 of the Children Act 1989 for an Emergency Protection Order. In practice, local authorities will make applications. Only in exceptional circumstances should these be ex parte applications, i.e. made without notice of the application having been given to the parents.

The Order will enable a child to be removed to other accommodation or to remain in a place where he/she is being accommodated (e.g. a hospital or foster placement). The Order may authorise the applicant to enter specified premises and to search for the child in respect of whom the Order is made or for another child if the Court has reasonable cause to believe that he/she may be on the premises (Section 48).

The Court may also issue a warrant authorising a Police Constable to assist the applicant, using reasonable force if necessary [Section 48(9)]. Under Section 48(11), a Court may direct that a registered medical practitioner, registered nurse or registered health visitor, may accompany a Constable if he/ she so chooses.

Where speed is essential to protect a child and a warrant would take too long to obtain, the Police can enter premises without a warrant to save life or limb under Section 17 (1)(e) of the Police and Criminal Evidence Act 1984.

The conditions for granting an Emergency Protection Order are that the Court is satisfied that there is reasonable cause to believe the child is likely to suffer significant harm if he/she is not removed from, or does not remain at, a place in which (s)he is then being accommodated or where a Section 47 Enquiry is being conducted and those enquiries are being frustrated by the unreasonable refusal of access to the child requested as a matter of urgency. If the Order is granted, the applicant should only remove the child if this is necessary to safeguard his/her welfare, and must return the child when the applicant considers it is safe to do so.

The Court may attach directions to the Order regarding assessment of the child and contact with parents or others.

An Emergency Protection Order lasts for a maximum period of eight days. The Court may, exceptionally, extend it for a further period of up to seven days if an application to extend is made and there is reasonable cause to believe that the child is likely to suffer significant harm if the Order is not extended. There is no appeal against the making of or refusal to make an Emergency Protection Order. However, after 72 hours from the granting of an Order the child, his parents, any other person who has parental responsibility for him/her, or any person with whom he was living immediately before the Order was made, may apply to the Court for its discharge.

Where the Court is satisfied that an Emergency Protection Order should be granted the Court may also include an exclusion requirement in the Order - see Section 7, Exclusion Orders.

Throughout the period of any Emergency Protection Order, parents should, as far as possible, be involved in discussion and planning for the child and at the very least should be kept fully aware of what action is being taken. On the granting of the Order, the applicant will be given parental responsibility for the child concerned, which will be shared with the parents.

A Court may make a Recovery Order under Section 50 of the Children Act 1989 in respect of a child who is subject of an Emergency Protection Order, Care Order or Interim Care Order or in Police Protection, if there is reason to believe that he or she has been unlawfully taken away or is being unlawfully kept away from the "responsible person", has run away or is staying away from the "responsible person" or is missing. A "responsible person" is any person who has care of the child by virtue of a Care Order, Interim Care Order, Emergency Protection Order or Police Protection.

The Order operates as a direction to produce the child or disclose his or her whereabouts, and authorises a Constable to enter specified premises and search for the child using reasonable force if necessary.

A Police Constable may enter and search any premises, without the need for a warrant, for the purposes of saving life or limb (Police and Criminal Evidence Act 1984, Section 17).

This is a general power and may be used to gain access to premises in which a child is in serious danger.

A Care Order is an Order made by the Court following Care Proceedings under Section 31 of the Children Act 1989.

A Court can only make a Care Order if it is satisfied that the child concerned is suffering or is likely to suffer Significant Harm attributable to the care being given to the child, or likely to be given to him if the Order were not made, not being what it would be reasonable to expect a parent to give or the child being beyond parental control. This test is referred to as "the threshold criteria". The Court must also have regard to the Welfare Checklist and so determine whether making a Care Order is in the child's best interests.

An Interim Care Order can be made under Section 38 of the Children Act 1989 at any stage in the proceedings if the court is satisfied that reasonable grounds exist for believing that the above criteria are satisfied. The duration is for up to 8 weeks of the first occasion and after that, for periods of up to 28 days. There is no limit to the number of the interim care orders that can be made.

Under a Care Order or an Interim Care Order the local authority specified in the order acquires parental responsibility for the child, to be shared with the parents and any others who retain parental responsibility, for example Special Guardians. This will restrict the parents' exercise of their parental responsibility to the extent required to safeguard or promote the child's welfare.

All children who are the subject of Care Orders have to have a Care Plan. When making a Care Order, the Court has to consider whether the Care Plan for the child meets the child's needs.

A Care Order lasts until the child is 18 years old unless discharged earlier.

Care Order and Children with Links to Other Countries

It can be quite challenging for social workers to understand how best to involve foreign authorities when a child has links to a foreign country (e.g. foreign national child, a child with dual nationality or a British child of foreign national parents/origin) and the case goes to care proceedings. In order to support timeliness of court decisions and ensuring support is given to the family, liaison with their respective Embassy to inform of the care proceedings process should be considered.

Please see the following guidance: Cross-border Child Protection Cases: The 1996 Hague Convention.

The Public Law Outline: Guide to Case Management in Public Law Proceedings came into force with effect from 6th April 2010. This followed on from previous statutory guidance for local authorities effective from 2008, which resulted from the Review of the Child Care Proceedings System in England and Wales.

A Pilot Scheme of a revised Public Law Outline was phased in between 1st July 2013 and 7th October 2013, and ran until 21st April 2014. A revised Public Law Outline was then introduced on 22 April 2014.

The Public Law Outline sets out streamlined case management procedures for dealing with public law children's cases. The aim is to identify and focus on the key issues for the child, with the aim of making the best decisions for the child within the timetable set by the Court, and avoiding the need for unnecessary evidence or hearings.

As well as the Court-set timetable, the case management tools also involve the case management documentation to be filed by the local authority and other parties, (including case summaries and a schedule of proposed findings), advocates' discussions/meetings, a Case Management Hearing and an issues resolution hearing before the final hearing.

Under the revised section 32(1)(a) of the Children Act 1989 (introduced by section 14 of the Children and Families Act  2014), care and supervision proceedings must be completed ‘without delay, and, in any event, within twenty-six weeks beginning with the day on which the application was issued’.  This places an increased emphasis on pre-proceedings work and the quality of assessments.

Sir James Munby, President of the Family Division, has set out his interpretation of the revised Public Law Outline in ‘The Process of Reform: the revised PLO and the Local Authority’.

A Supervision Order is an order made by the Court under Section 31 of the Children Act 1989. The Court can only make a Supervision Order under this section if it is satisfied that the threshold criteria are met (see section on Care Orders above).

Under a Supervision Order, the local authority specified in the order has a duty to advise, assist and befriend the child and the family and take such steps as are set out in Section 35 of the Children Act 1989. In addition conditions can be attached to Supervision Orders for example in relation to medical treatment.

A Supervision Order does not confer parental responsibility on the local authority.

A Supervision Order can be made for up to one year and can be extended for a total of up to 3 years by a Court.

An Interim Supervision Order can be made for up to eight weeks on the first occasion and after that, for periods of up to 28 days. There is no limit to the number of interim supervision orders that can be made.

See also East of England Region Joint Protocol on Supervision Orders.

Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replaced Contact Orders and Residence Orders.

A Child Arrangements Order means a court order regulating arrangements relating to any of the following:

  1. With whom a child is to live, spend time or otherwise have contact; and
  2. When a child is to live, spend time or otherwise have contact with any person.

The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.

The ‘contact’ aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.

A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.

Child Arrangements Orders are private law orders, and cannot be made in favour of a local authority.  Where a child is the subject of a Care Order, there is a general duty on the local authority to promote contact between the child and the parents. A Contact Order can be made under section 34 of the Children Act 1989 requiring the local authority to allow the child to have contact with a named person.

A Special Guardianship Order is an order made by the Court under section 14A of the Children Act 1989. The Order offers an option to provide permanence for children who are unable to live with their parents but for whom adoption is not the right option, for example because of their age and existing attachment to their birth parents. It may therefore be appropriate where a child lives with relatives or friends of the family, or with foster carers who wish to offer a permanent home to the child.

A person in whose favour a Special Guardianship Order is made will become the child's Special Guardian and acquire parental responsibility for the child which he or she can exercise to the exclusion of any other person with parental responsibility.

Parental consent must still, however, be obtained in relation to the child's adoption, change of name or removal from the country for more than 3 months.

A Special Guardianship Order will last until a child is 18 years old. It will not automatically be discharged on the making of a Care Order, although the exercise of parental responsibility will be restricted as a result.

The local authority can make payments to Special Guardians.

A Prohibited Steps Order is an Order made by the Court under section 8 of the Children Act 1989.

The Order specifies action that cannot be taken by a person in relation to a child without the consent of the Court, for example taking the child out of the country.

A Specific Issue Order is an order made by the Court under Section 8 of the Children Act 1989.

The Order gives direction for the purposes of determining a specific question which has arisen in relation to the exercise of parental responsibility for a child, for example, where or how a child should be educated.

A child who is a ward of court is under the jurisdiction of the High Court. No important decision can be taken regarding such a child without the High Court's consent. This includes medical assessments and interviews.

The Government publication, 'Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children', gives guidance to those conducting video-recorded interviews with child witnesses where it is intended that the interview be used in court proceedings. Whilst the focus of the document is on criminal proceedings, it is the practice in Hertfordshire to follow the Guidance in Joint investigations between the Hertfordshire Constabulary and the Children's Services, in order to avoid the unnecessary re-interviewing of a child.

The Guidance gives general advice on when, where and how to make a video recording which is intended to be used in criminal (and civil) proceedings, and sets out the legal conditions which must be satisfied before a court can accept a video recording of an interview with a child witness. It gives advice on preparation for, and conduct during, the interview and details the matters which need to be dealt with once the video recording has been made, including arrangements for the proper storage, custody and disposal of tapes. There is also guidance on the provision of therapy for child witnesses prior to a criminal trial.

Although it is not compulsory to adopt the Guidance, it should be applied, in the interest of good practice, in all cases. Non-compliance may result in the video interview being ruled inadmissible as evidence.

The full text of the guidance can be found at the Crown Prosecution Service website.

The meaning of Parental Responsibility

Section 3 of the Children Act defines and outlines the scope of the duties and authority in "parental responsibility"; doing so by reference to:

"…All the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property…"

The exercise of parental responsibility is left largely to the discretion of the adults involved, subject to the criminal law which prohibits the commission of crimes against children and the civil law, which provides remedies for the protection of children's welfare. Secondly, the extent of parental responsibility may diminish as children attain sufficient understanding to acquire the legal right to make their own decisions.

A person other than a parent can acquire parental responsibility through a Court Order, for example a Child Arrangements Order or a Special Guardianship Order. The local authority can acquire parental responsibility through an Emergency Protection Order, Interim Care Order or Full Care Order. The exercise by parents of their parental responsibility will be limited by such Court Orders or directions made under them. A person with parental responsibility is not entitled to act incompatibly with a Court Order. Parents do not lose their parental responsibility unless an Adoption Order is made.

Who may have Parental Responsibility?

  1. In relation to married parents, all mothers and fathers automatically have parental responsibility;
  2. In relation to unmarried parents, mothers automatically have parental responsibility;
  3. The position in relation to unmarried fathers changed on 1 December 2003. Up to then, if the father was not married to the mother, he could only acquire Parental Responsibility by a formal agreement with the mother in a prescribed form or by a Court Order. However the change is that an unmarried father acquires Parental Responsibility if he registers the birth jointly with the mother, and the registration takes place on or after 1 December 2003. This is not retrospective and therefore an unmarried father whose name appears on the birth certificate where registration took place before 1 December 2003 does not have Parental Responsibility;
  4. Other persons have parental responsibility if Orders have been made granting custody or care or control of a child to them prior to the Children Act 1989 or if they have been appointed guardians on the death of the parents or if they have been granted parental responsibility through an Order made under the Children Act 1989.

Parental responsibility will last as long as the Orders remain in existence:

  1. Under the Children Act 1989, parental responsibility will be acquired through a Child  Arrangements Order, Special Guardianship Order, Parental Responsibility Order (to an unmarried father or step-parent), Care Order, Interim Care Order or Emergency Protection Order;
  2. On the death of all those with parental responsibility a person appointed as a testamentary guardian of the child under a will or appointed as a guardian of the child by the Court acquires parental responsibility;
  3. Step-parents and civil partners may now obtain parental responsibility by court order or agreement for their partner's children;
  4. Prospective adopters also acquire parental responsibility upon the placement of a child with them under a Placement Order or where parental consent to the adoptive placement has been formally given and witnessed; however, the extent to which they may exercise their parental responsibility prior to an Adoption Order being made can be determined by the Local Authority and is best done in the form of a written agreement.


Impact on Practice

Section 2(6) of the Children Act 1989 provides that any person with parental responsibility does not cease to have that responsibility solely because some other person (e.g. a local authority) subsequently acquires it. The implications of this are great.

For example:

  1. The local authority has a duty to ascertain and consider the wishes and feelings of those with parental responsibility before making any decision with respect to any child subject to a Care Order, Interim Care Order or Emergency Protection Order [Section 22(4)];
  2. When conducting any review on a child subject to a Care Order, Interim Care Order or Emergency Protection Order, the local authority must seek the views of any person with parental responsibility in relation to any particular matter which is being considered [Section 26(1)]. (This does not apply where the child is placed for adoption when the local authority must consult the prospective adopters).

Please see: Who Has Parental Responsibility (PR) for further information.

The Act is accompanied by a Code of Practice which can be found at the Department for Constitutional Affairs website.

The Mental Capacity Act 2005 which came fully into force in October 2007 applies primarily to people aged 16 or over who lack capacity to make a particular decision, leaving matters concerned with the care and welfare of the majority of children and young persons to be resolved under the Children Act 1989, or the inherent jurisdiction of the High Court. However, there is some overlap as explained below.

The Court of Protection does have power to make decisions relating to the property and affairs of a person under 16, in circumstances where the court considers it is likely that the person will still lack capacity to make decisions in respect of the matters in question, after reaching the age of 18. However, powers under the Act generally only arise where the person lacking capacity is aged 16 or over.

The whole Act is underpinned by a set of five key principles:

  • A presumption of capacity - every person has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  • Individuals being supported to make their own decisions - a person must be given all practicable help before anyone treats them as not being able to make their own decisions;
  • Unwise decisions - just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;
  • Best interests - an act done or decision made under the Act for or on behalf of person who lacks capacity must be done in their best interest. The Act provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person's best interest. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, people involved in caring for the person lacking capacity gain a right to be consulted concerning a person's best interests;
  • Least restrictive option - anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedom.

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a "decision-specific" and time specific test. No one can be labelled 'incapable' simply as a result of a particular medical condition or diagnosis. Lack of capacity cannot be established merely by reference to a person's age, appearance, or any condition or aspect of a person's behaviour which might lead others to make unjustified assumptions about capacity.

There are no criteria for deciding when to use either the Children Act or Mental Capacity Act, or indeed, whether to commence proceedings under the inherent jurisdiction of the High Court. The facts and outcomes required will be individual to each case and will need to be considered. For example, in some cases, legal proceedings may be required to resolve disputes concerning the care, treatment or welfare of young persons aged 16 or 17 who lack capacity to make such decisions, or to make legally effective arrangements for their care. A case relating to a 16 or 17 year old who lacks capacity could, potentially, be heard either in the Family Courts or in the Court of Protection. The choice of court will depend on what is appropriate in the particular circumstances of the case.

The Code of Practice which accompanies the Mental Capacity Act, gives some examples of where the Mental Capacity Act (as opposed to the Children Act) may be the more appropriate:

  • In unusual circumstances it might be in a young person's best interests for the Court of Protection to make an order and/or appoint a property and affairs deputy. For example, this might occur when a young person receives financial compensation and the Court appoints a parent or a solicitor as a property and affairs deputy;
  • It may be appropriate for the Court of Protection to make a welfare decision concerning a young person who lacks capacity to decide for themselves (for example, about where the young person should live) if the Court decides that the parents are not acting in the young person's best interests;
  • It might be appropriate to refer a case to the Court of Protection where there is disagreement between a person interested in the care and welfare of a young person and the young person's medical team about the young person's best interests or capacity.

Generally, if a case requires an on-going Order - because the young person is likely to still lack capacity when they are 18, it may be more appropriate for the Court of Protection to hear the case. For one-off cases not involving property or finances, the family courts may be more appropriate.

A young person is presumed, under the Family Law Reform Act 1969, to be competent to give consent for themselves for their own surgical, medical or dental treatment, and any associated procedures, such as investigations, anaesthesia or nursing care. In relation to decisions about other types of care and treatment anyone under 18 is presumed to lack legal capacity, subject to the Fraser competence ruling (also referred to as test of "Gillick competence" i.e. whether the child is mature and intelligent enough to understand a proposed treatment or procedure). For further information see the NSPCC website.

Chapter 12 of the Code of Practice provides more detailed guidance on the issue of capacity for children and young people. The full text of the Code of Practice can be found at the Department for Constitutional Affairs website.

Particular difficulties may arise in relation to young people with mental health problems who require in-patient psychiatric treatment, and who are treated informally rather than detained under the Mental Health Act 1983. If they are over 16 and lack capacity, decision-making for these young people and, in particular, acts in connection with their care or treatment can be regulated by the Act's provisions, and in accordance with key principles set out above. In such cases, anyone with Parental Responsibility and other relevant people involved in the care or interested in the welfare of the young person should be consulted in determining the young person's best interests.

However, the Act does not permit any actions that amount to a deprivation of a young person's liberty. In such circumstances, additional safeguards are required, either through detention under the Mental Health Act 1983 or authorisation by a court, for example via section 25 Children Act 1989 (application for secure accommodation) or through legal proceedings in the Family Division of the High Court or the Court of Protection.

Last Updated: March 11, 2024