Children Act 2004
1.1. Section 10 requires each local authority to make arrangements to promote co-operation between the authority, each of the authority’s relevant partners and such other persons or bodies, working with children in the local authority’s area, as the authority consider appropriate.  The arrangements are to be made with a view to improving the wellbeing of children in the authority’s area – which includes protection from harm or neglect alongside other outcomes.  This section of the Children Act 2004 is the legislative basis for children’s trust arrangements.

1.2. Section 11 requires a range of organisations to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged having regard to the need to safeguard and promote the welfare of children.

1.3 Section 12 enables the Secretary of State to require local authorities to establish and operate databases relating to the section 10 or 11 duties (above) or the section 175 duty (Appendix A), or to establish and operate databases nationally. The section limits the information that may be included in those databases and sets out which organisations can be required to, and which can be enabled to, disclose information to be included in the databases.

1.14 Section 13 of the Children Act 2004 requires a range of organisations to take part in Local Safeguarding Children Boards (LSCBs). Sections 13-16 set out the framework for LSCBs, and the LSCB regulations, issued for consultation alongside the draft guidance Working Together to Safeguard Children (2005c), set out the requirements in more detail in particular on LSCB functions.

Children Act 1989
1.5  Safeguarding and Promoting the Welfare of Children
Section 17 of the Children Act 1989 places a general duty on every local authority:

1 to safeguard and promote the welfare of children within their area who are in need; and

2 so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.

Children who are suffering or are likely to suffer significant harm.
Where a local authority –

a. are informed that a child who lives, or is found in their area –
i. is the subject of an emergency protection order; or
ii. is in police protection; or

b.  have reasonable cause to suspect that a child who lives, or is found in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare (Children Act 1989 section 47(1)).

1.6 Duties to co-operate to safeguard and promote the welfare of children
The Children Act 1989 places two specific duties on agencies to co-operate in the interests of children in need.
(a) Section 27 provides that a local authority may request help from:

• any local authority;
• any local education authority;
• any housing authority;
• any health authority, Special Health Authority, Primary Care Trust or National Service Trust or NHS Foundation Trust; and
• any person authorised by the Secretary of State,

in exercising the local authority’s functions under Part III of the Act. This part of the Act places a duty on local authorities to provide support and services for children in need, including children looked after by the local authority and those in secure accommodation. The authority whose help is requested in these circumstances has a duty to comply with the request, provided it is compatible with its other duties and functions.

(b) Section 47 places a duty on:

• any local authority;
• any local education authority;
• any housing authority;
• any health authority, Special Health Authority, Primary Care Trust or National Service Trust or NHS Foundation Trust; and
• any person authorised by the Secretary of State,

to help a local authority with its enquiries in cases where there is reasonable cause to suspect that a child in suffering, or is likely to suffer, significant harm.

1.7 Children provided with accommodation by a health authority or local education authority
(c) Section 85

(1) Where a child is provided with accommodation by any health authority or local education authority (“the accommodating authority”) –

(a)  for a consecutive period of at least three months; or

(b)  with the intention, on the part of that authority, of accommodating him for such a period, the accommodating authority shall notify the responsible authority.


(2) Where subsection (1) applies with respect to a child, the accommodating authority shall notify the responsible authority when they cease to accommodate the child.


(3) In this section “the responsibility authority” means –

(a) the local authority appearing to the accommodating authority to be the authority within whose area the child was ordinarily resident immediately before being accommodated; or

(b) where it appears to the accommodating authority that a child was not ordinarily resident within the area of any local authority, the local authority within whose area the accommodation is situated.

(4) Where a local authority have been notified under this section, they shall–

(a) take such steps as reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated by the accommodating authority; and

(b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.

1.8. Private Fostering Amendments made to section 67 of and Schedule 8 to the Children Act 1989
1989 by clause 37 of the Children Ct 2004

Section 67 as amended by clause 37 of the Children Act 2004:

(1) It shall be the duty of every local authority to satisfy themselves that the welfare of children who are or are proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted and to secure that such advice is given to those concerned with caring for them as appears to the authority to be needed.

(2) The Secretary of State may make regulations –

(a) requiring every child who is privately fostered within a local authority’s area to be visited by an officer of the authority –

(i) in prescribed circumstances; and
(ii) on specified occasions or within specified periods; and

(b) imposing requirements which are to be met by any local authority, or officer of a local authority, in carrying out functions under this section.

(2A) Regulations under subsection (2)(b) may impose requirements as to the action to be taken by a local authority for the purposes of discharging their duty under subsection (1) where they have received notification of a proposal that a child be privately fostered.

(3) Where any person who is authorised by a local authority for the purpose [to visit privately fostered children] has reasonable cause to believe that -

(a) any privately fostered child is being accommodated in premises within the authority’s area; or

(b) it is proposed to accommodate any such child in any such premises, he may at any reasonable time inspect those premises and any children there.

(4) Any person exercising the power under subsection (3) shall, if so required, produce some duly authenticated document showing his authority to do so.

(5) Where a local authority are not satisfied that the welfare of any child who is or is proposed to be privately fostered within their area is being or will be satisfactorily safeguarded or promoted they shall –

(a) unless they consider that it would not be in the best interests of the child, take such steps as are reasonably practicable to secure that the care and accommodation of the child is undertaken by -
(i) a parent of his;
(ii) any person who is not a parent of his but who has parental responsibility for him; or
(iii) a relative of his; and

(b) consider the extent to which (if at all) they should exercise any of their functions under the Children Act with respect to the child.

(6) The Secretary of State may make regulations requiring a local authority to monitor the way in which the authority discharge their functions under this Part (and the regulations may in particular require the authority to appoint an officer for that purpose).

Schedule 8 – Privately fostered children
NB: No paragraphs in schedule 8 are amended – paragraph 7 is set out here for the sake of completeness as new paragraph 7A refers.

Regulations requiring notification of fostering, etc

(1) The Secretary of State may by regulations make provision as to–

(a) the circumstances in which notification is required to be given in connection with children who are, have been or are proposed to be fostered privately; and

(b) the manner and form in which such notification is to be given.

(2) The regulations may, in particular –

(a) require any person who is, or proposes to be, involved (whether or not directly) in arranging for a child to be fostered privately to notify the appropriate authority;

(b) require any person who is –
(i) a parent of a child; or
(ii) a person who is not a parent of his but who has parental responsibility for a child, and who knows that it is proposed that the child should be fostered privately, to notify the appropriate authority;

(c) any parent of a privately fostered child, or person who is not a parent of such a child but who has parental responsibility for him, to notify the appropriate authority of any change in his address;

(d) require any person who proposes to foster a child privately, to notify the appropriate authority of his proposal;

(e) any person who is fostering a child privately, or proposes to do so, to notify the appropriate authority of –
(i) any offence of which he has been convicted;
(ii) any disqualification imposed on him under section 68; or
(iii) any prohibition imposed on him under section 69;

(f) any person who is fostering a child privately, to notify the appropriate authority of any change in his address;

(g) require any person who is fostering a child privately to notify the appropriate authority in writing of any person who begins, or ceases, to be part of his household;

(h) require any person who has been fostering a child privately, but has ceased to do so, to notify the appropriate authority (indicating, where the child has died, that that is the reason).

 

7A Every local authority must promote public awareness in their area of requirements as to notification for which provision is made under paragraph 7.

Domestic Violence, Crime And Victims Act 2004

1.9. The new offence and procedural changes in section 5 of the Domestic Violence, Crime and Victims Act 2004 forms a package of measures which are intended to solve the problem that arises when a child or vulnerable adult suffers an unlawful death and it can be proved that one or more of a small group of people living in the same household as the victim caused the death, but not which of them. In such circumstances there may be no case to answer against any member of the household for murder/manslaughter. Until now this loophole in the law has enabled those co-accused of the death of a child or vulnerable adult to escape justice by remaining silent or by blaming each other. It is also a serious stand-alone offence which puts anew legal responsibility on adult household members who could be charged with the offence even when, for example, there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim.

1.10. The offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they caused the death of that child or vulnerable adult or three conditions are met:

• they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household; and
• they failed to take reasonable steps to prevent that person coming to harm; and
• the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.

1.11 The offence may therefore be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years.

Education Act 2002

Safeguarding and promoting the welfare of children

1.12  Section 175 of the Education Act 2002 places a duty on Local Education Authorities and on school and college governing bodies to make arrangements with a view to safeguarding and promoting the welfare of children. Proprietors of independent schools also have a duty to safeguard and promote the welfare of children who are pupils at the school under Section 157 of the Education Act 2002 and the Education (Independent Schools Standards) Regulations 2003.

Education Act 1996

Child employment

1.13 Local Authority functions relating to child employment under section 559 of the Education Act 1996 and section 18(2) of the Children and Young Persons Act 1933 are education functions.  The Local Authority Education Welfare Service is responsible for administering the child employment legislation, currently contained in local byelaws. The health, education and wellbeing of every child for whom a work permit or performance licence is issued must be protected. Employers of children also have a responsibility to safeguard and promote the welfare of children by applying to the local authority for an employment permit.

Youth services facilities

1.14 The local authority functions relating to the provision of youth services facilities are set out in section 508 of the Education Act 1996.

Housing Act 2004

1.15 Part 1 of the Housing Act 2004, which is likely to come into operation towards the end of 2005, gives local authorities powers and duties to take action against bad housing conditions, and introduces a new Housing Health and Safety Rating System under which authorities’ environmental health professionals will assess the impact of health and safety hazards in the light of the occupants most vulnerable to them. Examples are damp and mould (to which the most vulnerable age group is children under 14), problems with washing facilities, sanitation and drainage (children under 5) and falls between levels (children under 5). The new system replaces the housing fitness standard and provides an objective way of assessing the seriousness of hazards and identifying the most appropriate remedial action.

Housing Act 1996

1.16 Section 213A of Housing Act 1996 (which was inserted by the 2002 Homelessness Act) ensures that a housing authority contacts social services (with consent) when a family with children is ineligible or intentionally homeless i.e. they are not owed the main homelessness duty and the family wishes to seek assistance under Part 3 of the Children Act 1989. If consent is withheld, the housing authority may disclose information about a homelessness case to social services if the child is or may be at risk of significant harm.

1.17 Section 213A also ensures that housing authorities cooperate with social services to provide advice and assistance as is reasonable to help ineligible or intentionally homeless households with children to obtain accommodation. However the duty does not extend to providing accommodation for the household.

Human Rights Act 1998

1.18 The Human Rights Act 1998 is fundamental to this Guidance. Section 6(1) places a duty on all public authorities to act in a way that is compatible with the rights and freedoms of the European Convention of Human Rights that have been incorporated by the 1998 Act. These convention rights include Article 3 – “no one shall be subjected to torture or inhumane or degrading treatment or punishment” and Article 8 – “everyone has the right to respect for his private and family life, his home and his correspondence”.

Licensing Act 2003

1.19 The overall aim of the Licensing Act is to modernise the legislation governing the sale and supply of alcohol and public entertainment licensing. The Act transferred Liquor licensing powers from the Magistrates’ Courts to Local Authorities, via the creation of ‘Licensing Authorities’. A number of ‘responsible authorities’ are to be notified of all licence variations and new applications. These responsible authorities include the police and the fire department, as well as “a body which represents those who, in relation to any area, are responsible for, or interested in, matters relating to the protection of children from harm, and is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters.” Agreement regarding the identification of this body is a local decision, however it may be a function of the Area Child Protection Committee (the LSCB in the future) or social services.

The Sexual Offences Act 2003

1.20 The Sexual Offences Act 2003, which came into force on 1 May 2004, represents a major overhaul in the sexual offences framework. Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. Amongst the important measures contained in this Act, it clarifies issues surrounding consent in rape and sexual assault cases; it gives children the greatest possible protection against sexual abuse; for the first time, it provides a specific set of offences to protect persons with a mental disorder; and it tackles the commercial exploitation of people for sexual purposes through prostitution and trafficking. Throughout the Act, the maximum penalties for offences have been reviewed and, where necessary, amended to reflect the seriousness of the behaviour involved.

1.21 Part 2 of the Act deals with notification requirements (often known as the register of sex offenders) and re-enacts, with amendments, Part 1 of the Sex Offenders Act 1997. The notification requirements have proved an invaluable tool for the police to monitor convicted sex offenders within their area and the Sexual Offences Act makes a number of changes that increase the effectiveness of the requirements. Part 2 of the 2003 Act also brings together, and improves upon, the sex offender order and restraining order into a new sexual offences prevention order (SOPO) and introduces the notification order, the foreign travel order and the risk of sexual harm order (RSHO). These civil orders are intended to assist the police and probation services in the management of sex offenders and those who pose a risk of sexual harm. 

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