Community Care Inform

Sections 11 - 20

SECTION 11 – GENERAL PRINCIPLES AND SUPPLEMENTARY

This section makes further provision about the manner in which section 8 orders are to be made, their contents and the circumstances in which, as a result of family reconciliation, they cease to have effect.

Avoidance of delay
Whenever the question of making a section 8 order arises in proceedings, subsection (1) requires the court to:

(a) draw up a timetable with a view to determining the question without delay; and

(b) give such directions as it considers appropriate for ensuring, so far as is reasonably practicable, that the timetable is adhered to.

This obligation also applies when any other question arises as to a section 8 order, for example a question as to whether an existing order should be varied or discharged.

Rules of court may be made about the discharge of the court’s duty under subsection (1) (subsection (2)).

Subsection (3) also provides that section 8 orders may be made in the course of family proceedings even though the court is not in a position finally to dispose of those proceedings. For example, it could make a contact order part way through an application for financial relief in a matrimonial case. For the meaning of “family proceedings”, see the note to section 8 of the Children Act 1989.

The contents of section 8 orders
General
Subsection (7) provides the court with power to tailor section 8 orders to ensure that they are effective and that they suit individual circumstances. It provides that a section 8 order may:

(a) contain directions about how it is to be carried into effect;

(b) require specified persons to comply with conditions;

(d) make such incidental, supplemental or consequential provision as the court thinks fit.

Joint residence orders
In the case of a residence order made in favour of two or more persons who do not live together, the order may specify the periods during which the child is to live in the different persons’ households.

Family reconciliation
Provision is made for contact and residence orders to cease to have effect in the event of family reconciliation:

(i) in the case of a residence order under which a child lives with one of two parents (each of whom has parental responsibility for the child), the order ceases to have effect if the parents live together for a continuous period of more than six months (subsection (5)); and

(ii) in the case of a contact order which requires the parent with whom a child lives to allow the child to have contact with the other parent, the order ceases to have effect if the parents live together for a continuous period of more than six months (subsection (6)).

SECTION 11A – 11P: CONTACT-RELATED PROVISIONS INSERTED BY THE CHILDREN AND ADOPTION ACT 2006
This group of sections, inserted by the Children and Adoption Act 2006, was the legislature’s response to growing concerns about the ineffectiveness of contact orders made under the Children Act 1989. These provisions came into force on 8 December 2008. The Explanatory Notes to the 2006 Act describe the background to the new provisions and their general effect as follows:

“This Act is intended to assist in the implementation of the Green Paper, Parental Separation: Children's Needs and Parents' Responsibilities (Cm 6273), published in July 2004.

The Green Paper was followed by Parental Separation: Children's Needs and Parents' Responsibilities: Next Steps (Cm 6452), published in January 2005, which set out the Government's response to the consultation on the Green Paper and its proposals for further work. Subsequent to that, the Children (Contact) and Adoption Bill was published in draft on 2^nd February 2005 for pre-legislative scrutiny by an ad hoc joint committee of both Houses of Parliament. The scrutiny committee published its report on 12^th April 2005, and The Government Reply to the Report from the Joint Committee on the Draft Children (Contact) and Adoption Bill (Cm 6583) was published on 8^th June 2005.

The Act provides the courts with new powers to promote contact and enforce contact orders made under section 8 of the Children Act 1989 ('the 1989 Act').

Part 1 of the Act adds to the powers of the courts when dealing with cases involving contact with children.

During the proceedings a court may, even if it does not make a contact order, direct a party to take part in an activity that would promote contact with a child. It may make similar provision by means of a condition in a contact order.

The courts' powers in cases involving breach of a contact order are increased by adding:

a power to make an enforcement order imposing an unpaid work requirement;
a power to order one person to pay compensation to another for a financial loss caused by a breach.

These powers are in addition to their powers as to contempt and their ability to alter the residence and contact arrangements as regards a child.”

Relevant court rules
The relevant court rules have been amended so that they set out the procedure to be followed in making applications and conducting hearings under sections 11A to 11P.

For cases in the High Court and County Court, see the Family Proceedings Rules 1991 which are available (as amended) here

For cases in the Magistrates Court, see the Family Proceedings Courts (Children Act 1989) Rules 1991 which are available (as amended) here, and the new Magistrates Courts (Enforcement of Children Act 1989 Contact Orders) Rules 2008 which are available at http://www.opsi.gov.uk/si/si2008/uksi_20082859_en_1.

SECTION 11A - CONTACT ACTIVITY DIRECTIONS
This section, which was inserted into the Children Act 1989 by the Children and Adoption Act 2006, creates the “contact activity direction”. These directions are not a substitute for contact orders. Their purpose is, in advance of the making of a final contact order, to promote behaviours that will increase the likelihood of any subsequent contact order being complied with and to provide information about the sort of contact orders that would be appropriate in a particular case. .

When can a contact activity direction be made?
The Explanatory Notes to the 2006 Act state that subsection (1) “allows the court to direct a party to the case, at any stage in proceedings prior to a final order being made as to contact, to undertake activities promoting contact”. Section 11B specifies certain cases in which contact activity directions cannot be made.

Additionally, subsection (9) provides that “in considering whether to make a contact activity direction, the welfare of the child concerned is to be the court’s paramount consideration”.

What can a contact activity direction require?
The Explanatory Notes to the 2006 Act state as follows:

“The type of activities covered…may include, in particular, those referred to in section 11A (5) of the 1989 Act, such as programmes, classes and counselling or guidance sessions which may assist with establishing, maintaining or improving contact with a child. Other possible activities are programmes designed to address a person's violent behaviour in order to facilitate contact and information sessions about arrangements for contact, including information sessions about mediation. Section 11A(6) prevents a contact activity direction being used to require mediation or medical or psychiatric treatment.”

Under subsection (4), a contact activity direction must specify the activity required and the person who is to provide it.

Breach of contact activity direction
If a contact activity direction is breached, the person in question is liable to be made the subject of an enforcement order requiring him/her to carry out unpaid work. See further, the note to section 11J of the Children Act 1989.

Other relevant legislation
The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The court may require a child welfare report to be produced where a court is considering any question with respect to a child in proceedings under this section. See further, the note to section 7 of the Children Act 1989.

Section 91 of the Children Act 1989 provides that any contact activity direction ceases to have effect upon the making of a care order in respect of the child concerned.

SECTION 11B - CONTACT ACTIVITY DIRECTIONS: FURTHER PROVISIONS
This section sets out cases in which contact activity directions cannot be made. Generally, the effect of the section is to reserve contact activity directions for use in disputes as to contact between adults resident in England and Wales where the proceedings are not connected with adoption.

The need for a contact dispute
The Explanatory Notes to the 2002 Act say that subsection (1) of this section “provides that a contact activity direction may only be made where there is some dispute about the provision about contact that the court is considering whether to make, i.e. whether to make a contact order, or what its detailed provisions for contact should be”.

No directions for children
Subsection (2) provides that the court cannot order a child to take part in an activity unless that child is (rarely) the parent of the child concerned.

Prohibition on making directions in matters connected with adoption
Subsections (3) to (6) prevent contact activity directions being used for certain disputes connected with adoption or an adopted child. Their effect is described as follows by the Explanatory Notes to the 2006 Act:

“Contact activity directions cannot be used in proceedings where an 'excepted order' is being considered. This means that a contact activity direction may not be made in cases where an adoption order is being considered at the same time as a contact order, or in cases where, post-adoption, a court is considering making, varying or discharging a contact order in relation to someone who, but for the adoption, would have been a relative of the child. These exceptions for adoption cases will not apply where the adoption is, or was, by a partner of one of the child's parents or by a couple, one member of which is a parent of the child.”

Habitual residence condition
The effect of subsection (7) is described as follows by the Explanatory Notes to the 2006 Act:

“The court cannot order an individual to take part in an activity unless that individual is habitually resident in England and Wales. If an individual who is subject to a contact activity direction ceases to be habitually resident in England and Wales, the contact activity direction will cease to have effect.”

SECTION 11C - CONTACT ACTIVITY CONDITIONS
The purpose of this section is to allow the court to impose conditions on contact orders with a view to increasing the chances of their being complied with. It is in addition to the powers of the court under section 11 of the Children Act 1989 to direct how a contact order is to be carried into effect, for example.

When can contact activity conditions be imposed?
The general position is that, whenever the court makes or varies a contact order, it may also impose a contact activity condition (subsection (1)). Section 11D goes on to specify cases in which contact activity conditions may not be imposed.

Only certain individuals may be made subject to a contact activity condition (subsection (3)). These are:

(a) the person with whom, in accordance with the contact order in question, the child concerned lives or is to live;

(b) the person whose contact with the child concerned is provided for in that contact order;

(c) a person upon whom the contact order imposes a condition under section 11 (7) (b) of the Children Act 1989. Section 11 (7) (b) permits conditions to be attached to a contact order. For example, a parent with parental responsibility for a child, but who does not live with the child, might be made subject to conditions under a contact order with a view to preventing him/her from exercising parental responsibility in a way that frustrates the contact order. Subsection (3) of this section would permit the parent also to be subject to contact activity conditions.

What can a contact activity condition require?
A contact activity condition can impose the same range of requirements as a contact activity direction may impose in the pre-order stage of proceedings. See the note to section 11A of the Children Act 1989 for further details.

Breach of contact activity condition
If a contact activity condition is breached, the person in question is liable to be made the subject of an enforcement order requiring him/her to carry out unpaid work. See further, the note to section 11J of the Children Act 1989.

Other relevant legislation
The child welfare “paramountcy principle” applies where, under this section, the court determines any question with respect to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The court may require a child welfare report to be produced where a court is considering any question with respect to a child under this section. See further, the note to section 7 of the Children Act 1989.

SECTION 11D - CONTACT ACTIVITY CONDITIONS: FURTHER PROVISIONS
This section replicates, in the case of contact activity conditions, the excluded cases provided for in the case of contact activity directions by section 11B of the Children Act 1989. Accordingly, we see the same bars on: imposing conditions on children; the use of conditions in connection with adoption matters; the use of conditions in cases where a person is not habitually resident in England and Wales.

SECTION 11E - CONTACT ACTIVITY DIRECTIONS AND CONDITIONS: MAKING
The purpose of this section is to prevent the court from making impractical or unfeasible contact activity directions and conditions and to ensure that directions and conditions are properly tailored to individual circumstances.

The three “matters”
Subsection (2) provides that there are three matters that the court must satisfy itself as to before making a contact activity direction or condition:

(i) it must be satisfied that “the activity proposed to be specified is appropriate in the circumstances of the case” (subsection (2));

(ii) it must be satisfied that the person proposed to be specified as the provider of the activity is suitable to provide the activity (subsection (3));

(iii) it must be satisfied that the proposed activity will be provided in a place to which the individual in question can “reasonably be expected to travel” (subsection (4)).

Information to be considered about the proposed subject of the direction or condition
Subsection (5) provides that, before imposing a direction or condition, the court must obtain and consider information about the proposed subject of the direction or condition. This must include information about the likely effect of the direction or order on the individual.

Subsection (6) goes on to state that information about the likely effect of the direction/condition may include information as to any potential conflict with the individual’s religious beliefs and any interference with his/her work or attendance at an educational institution. It is therefore clear that these are matters to be taken into account when the court is deciding, under subsection (2), whether any proposed contact related activity would be “appropriate”.

Under subsection (7), the court can ask a CAFCASS officer (or Welsh equivalent) to provide information as to the above matters (including the three matters in subsections (2) to (4)).

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

SECTION 11F - CONTACT ACTIVITY DIRECTIONS AND CONDITIONS: FINANCIAL ASSISTANCE
Fees may be payable by those who are required to engage in contact-related activities. This section permits regulations to be made under which financial assistance may be given in respect of the fees required to be paid.

The Explanatory Notes describe the regulation-making power as follows:

“Section 11F…enables the Secretary of State, or the National Assembly for Wales, as appropriate, to make provision by regulations authorising the Secretary of State or the National Assembly for Wales (depending on the ordinary residence of the child) to make payments to assist some of those required to undertake contact activities in paying the charges or fees of those providing the activities. Regulations may provide that the activity provider must have been approved by the Secretary of State (or the National Assembly for Wales) in order for financial assistance to be provided in respect of their activities.

Regulations may set a maximum amount of financial assistance that will be paid for a contact activity, may set a sliding scale to determine how much assistance individuals get depending on their financial circumstances, and may provide for payments to be made direct to activity providers rather than to individuals.”

Regulations made under this section
The Children Act 1989 (Contact Activity Directions and Conditions: Financial Assistance) (Wales) Regulations 2008 which are available at www.opsi.gov.uk/legislation/wales/wsi2008/wsi_20082943_en_1.

SECTION 11G - CONTACT ACTIVITY DIRECTIONS AND CONDITIONS: MONITORING
The Explanatory Notes to the 2006 Act describe this section as follows:

“Section 11G of the 1989 Act provides that a court may ask a CAFCASS officer [or Welsh equivalent] to monitor compliance with contact activity directions or conditions and to report to the court if there is a failure to comply.”

SECTION 11H - MONITORING CONTACT
Monitoring requests
The previous section dealt with monitoring of contact activity directions and conditions. This section deals with monitoring of compliance with contact orders themselves. It is described as follows by the Explanatory Notes to the 2006 Act:

“In addition to the power to ask a CAFCASS officer [or Welsh equivalent] to monitor compliance with contact activity directions and contact activity conditions under new section 11G, section 11H of the 1989 Act…provides that a court may ask a CAFCASS officer to monitor compliance with a contact order, and to report to the court on such matters relating to compliance as the court may specify. The court may ask the CAFCASS officer to carry out this role for a period of up to a year. The court may not request monitoring of an order which is an 'excepted order' [these are the adoption-related orders looked at in more detail in the note to section 11B]. Those who can be subject to monitoring are:

a person who is required to allow contact with the child;

a person whose contact with the child is provided for;

a person who is subject to a condition under section 11 (7)(b) of the 1989 Act [see further, the note to section 11C]”

Assistance orders
Subsection (8) provides that the court may also order any person who can be made subject to monitoring to take such steps as are specified in the order to enable the CAFCASS officer (or Welsh equivalent) to comply with the court’s monitoring request.

Subsection (9) provides that such an order may not be made in respect of an individual who is a child (unless the individual is the parent of the child with whom the contact order in question is concerned).

The child welfare “paramountcy principle” applies where, under this section, the court determines any question with respect to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The “avoidance of delay principle” applies where, in assistance order proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The principle that an order should not be made unless that is better than making no order at all (the “no order principle”) applies where a court is considering whether to make an assistance order under this section. See the note to section 1 of the Children Act 1989.

SECTION 11I - CONTACT ORDERS: WARNING NOTICES
The Explanatory Notes to the 2006 Act describe it as follows:

“Section 11I into the 1989 Act…provides that, whenever a court makes or varies a contact order, it must attach a notice warning of the consequences of failing to comply with a contact order. (The consequences of failure to comply may be an enforcement order, an order for financial compensation, or the use of the courts' existing sanctions for contempt.)”

SECTION 11J - ENFORCEMENT ORDERS
This section introduces the enforcement order which is the new sanction for breach of a contact order created by the Adoption and Children Act 2006 with a view to increasing rates of compliance with such orders. It is very similar to a community service-type order imposed in criminal proceedings in that it requires the subject of the order to carry out unpaid work.

The general position
The general position as respects enforcement orders is described as follows by the Explanatory Notes to the 2006 Act:

“An enforcement order imposes an unpaid work requirement on a person who has breached a contact order. Before making an enforcement order, the court must be satisfied beyond reasonable doubt that the person was in breach of the contact order. A breach of a contact activity condition, or of a condition attached to a contact order under section 11(7) of the 1989 Act, constitutes a breach of a contact order. The court may not make an enforcement order if it is satisfied that the person in breach of the contact order had a reasonable excuse for breaching the order. The burden of proving that there was a reasonable excuse for breach falls upon the person who claims to have had a reasonable excuse, and the standard of proof is the balance of probabilities.

Enforcement orders may only be made in response to an application by the following:

the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
the person whose contact with the child concerned is provided for in the contact order;
any individual subject to a section 11 (7)(b) condition or a contact activity condition imposed by the contact order;
the child concerned (with the leave of the court) [the court may grant leave only if it is satisfied that the child has sufficient understanding to make the proposed application: subsection (7)].”

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

Other points
Other features of section 11J, not dealt with by the Explanatory Notes, are as follows:

(i) an enforcement order may be suspended by the court for such period as it thinks fit (subsection (9));

(ii) the court may make more than one enforcement order in relation to the same person on the same occasion (subsection (10));

(iii) the obligation of the court under section 11 to draw up a timetable with a view to determining matters without delay applies in relation to enforcement order proceedings. This is because subsection (11) provides that proceedings in which any question of making an enforcement order, or any other question with respect to such an order, are to be treated as “proceedings in which a question arises with respect to a section 8 order” and, thus, the section 11 obligations in relation to such questions are applied to enforcement order questions;

(iv) subsection (12) provides that this section is without prejudice to section 63 of the Magistrates’ Courts Act 1980. Under section 63, a magistrates’ court, when it requires something to be done ( for example, when it makes provision as to contact in a contact order), also has the power to require various things to be done for the purpose of carrying into effect the substantive requirement. Accordingly, that s.63 power is not affected by the availability of enforcement orders where a contact issue arises before a magistrates’ court.

SECTION 11K – ENFORCEMENT ORDERS: FURTHER PROVISION
This provision sets out cases in which enforcement orders cannot be made. It is described as follows by the Explanatory Notes to the 2006 Act:

“Section 11K of the 1989 Act provides that a court may not make an enforcement order against a person unless the person has received a copy of a notice under section 11I of the 1989 Act, or has been otherwise informed of its terms. It also provides that an enforcement order cannot be made against anyone who was aged under 18 at the time of the breach in question, or in relation to a breach of an 'excepted order' [these are the adoption-related orders considered in more detail in the note to section 11B of the Children Act 1989]”

In addition, under subsection (4) the court cannot make an enforcement order against a person unless s/he is habitually resident in England and Wales. If an individual who is subject to an enforcement order ceases to be habitually resident in England and Wales, the order ceases to have effect.

SECTION 11L – ENFORCEMENT ORDERS: MAKING
The purpose of this section is to ensure that enforcement orders are not made unless necessary and that they are tailored appropriately to the circumstances of a particular case.

The general test
The general test for making an enforcement order is provided by subsection (1), described as follows by the Explanatory Notes to the 2006 Act:

“In deciding whether to make an enforcement order, the court must be satisfied that the making of the order is necessary to secure compliance with the contact order in question and that the order is proportionate to the seriousness of the breach.”

In addition, under subsection (2) an enforcement order cannot be made unless satisfied that provision is in place so that the unpaid work requirement can be performed in the local justice area (magistrates’ court area) in which the proposed subject of the order resides.

Tailoring orders to meet circumstances
Subsection (3) requires the court, before making an enforcement order, to obtain and consider information about the proposed subject of the order and the likely effect of it upon him/her.

Subsection (4) goes on to state that information about the likely effect of the order may include information as to any potential conflict with the individual’s religious beliefs and any interference with his/her work or attendance at an educational institution.

Under subsection (5), the court can ask a CAFCASS officer (or Welsh equivalent) to provide information as to the above matters and whether any unpaid work requirement can be performed in the local justice area in question. The officer must comply with the request (subsection (6)).

The welfare of the child
Subsection (7) provides that “in making an enforcement order”, the court must take into account the welfare of the child who is the subject of the contact order that has been breached.

Other relevant legislation
The court may require a child welfare report to be produced where a court is considering any question with respect to a child in proceedings under this section. See further, the note to section 7 of the Children Act 1989.

SECTION 11M – ENFORCEMENT ORDERS: MONITORING
CAFCASS officers will be the eyes and ears of the court charged with gathering information and reporting back to the court if the work requirement under an enforcement order is not complied with. They will be assisted in this regard by local probation officers, who will supervise the carrying out of unpaid work requirements: see further, the note to paragraph 1 of Schedule A1 to the Children Act 1989.

Subsection (1) provides that, on making an enforcement order, the court “is to ask” a CAFCASS officer/Welsh equivalent to do certain things and report to it if certain events occur (it therefore appears that the court must make these requests). They are as follows:

(a) to monitor, or arrange for the monitoring of, compliance with the unpaid work requirement in the order;

(b) to report to the court if, following a failure to comply with a warning notice given under Schedule A1 to the Children Act 1989, a report has been made under that Schedule;

(d) to report to the court if the person is, or becomes, unsuitable to perform work required by the order.

The officer must comply with the request (subsection (2)).

SECTION 11N – ENFORCEMENT ORDERS: WARNING NOTICES
The Explanatory Notes describe it as follows:

“Section 11N of the 1989 Act provides that, where an enforcement order is made, the court must attach a notice warning of the consequences of breaching that order. The possible consequences are the imposing of a further enforcement order, or the enhancing of the existing enforcement order under paragraph 9 of Schedule A1 to the 1989 Act…or the use of existing sanctions for contempt.”

SECTION 11O – COMPENSATION FOR FINANCIAL LOSS
This section provides for the second new sanction for failure to comply with a contact order. It permits orders to be made requiring compensation to be paid to a person who has suffered financial loss as a result of a failure to comply with a contact order – for example, expenses incurred in making a futile trip to a place where contact should have taken place.

The general effect of section 11O
The general effect of section 11O is described as follows by the Explanatory Notes to the 2006 Act:

“[It] allows the court to require a person who has caused financial loss to another person as a result of breaching a contact order (which would include breaching a condition attached to a contact order) to pay compensation up to the amount of the loss. The court must take into account the welfare of any child concerned, and the financial circumstances of the person in breach, when making such an order.

Applications for an order under section 11O may be made only by a person falling within one of the following categories:

a person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
the person whose contact with the child concerned is provided for in the contact order;
an individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order;
the child concerned (with the leave of the court: [ leave not to be granted unless the court is satisfied the child has sufficient understanding to make the application]).”

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

Reasonable excuse for breach of contact order
Under subsection (3), the court may not make an order if it is satisfied that the person in breach of the contact order had a reasonable excuse for the breach. The burden of proving that there was a reasonable excuse for breach falls upon the person who claims to have had a reasonable excuse (subsection (4)).

Civil enforcement
Subsection (11) provides that the amount required to be paid under a compensation order may be recovered by the applicant as a civil debt ( that is, through a civil action in the county court).

Timetabling applications for compensation orders
The obligation of the court under section 11 to draw up a timetable with a view to determining matters without delay applies in relation to compensation order proceedings. This is because subsection (12) provides that proceedings in which any question of making a compensation order under this section arises are to be treated as “proceedings in which a question arises with respect to a section 8 order” and, thus, the section 11 obligations in relation to such questions are applied to enforcement order questions.

SECTION 11P – ORDERS UNDER SECTION 11O(2): FURTHER PROVISION
This section sets out cases in which a section 11O(2) compensation order may not be made.

The Explanatory Notes say that “this includes cases where the person in breach did not receive a notice under section 11I and was not otherwise informed of its terms or where the contact order is an excepted order [i.e. the adoption-related orders referred to in section 11B]”. In addition, an order cannot be made in respect of contact order breaches by an individual aged under 18 (at the date of the breach).

SECTION 12 – RESIDENCE ORDERS AND PARENTAL RESPONSIBILITY
This section ensures that a person named in a residence order also has parental responsibility (PR) for the child concerned, and provides for residence orders in certain cases to stay in place until a child turns 18.

Residence orders for fathers without PR
Under subsection (1), where a court makes a residence order in favour of the father of a child, it shall also make a parental responsibility order under s.4 (if the father does not already have PR for the child).

Subsection (4) provides that such a parental responsibility order cannot be brought to an end by the court at any time while the residence order remains in force.

Residence orders for others without PR
Where a court makes a residence order in favour of a person who is not the parent or guardian of the child, subsection (2) provides that the person automatically has PR for the child.

Subsection (3) places a limitation on the PR conferred by subsection (2). It cannot be exercised so as:

(i) to agree, or refuse to agree, to the making of an adoption order ( that is to say, the person has no formal say in adoption proceedings for the child);

(ii) to agree, or refuse to agree, to an order under s.84 of the Adoption and Children Act 2002 (a High Court order conferring PR upon a person prior to an adoption of the child abroad);

(iii) to appoint a guardian for the child.

Duration of residence order
As a result of amendments made to this Act by s.37 of the Children and Young Persons Act 2008 (which came into force on 1 September 2009), residence orders now last until the child concerned attains 18, unless, that is, the court directs that the order should end earlier or the order is discharged before the child is 18.

Other relevant legislation
For the meaning of “parental responsibility”, see the note to section 3 of the Children Act 1989.

SECTION 13 - CHANGE OF CHILD'S NAME OR REMOVAL FROM JURISDICTION
Where a residence order is in force with respect to a child, subsection (1) prevents any person from causing the child to be known by a new surname or from removing the child from the UK unless either of the following conditions is satisfied:

(i) each person with PR for the child has given written consent; or

(ii) the court has given leave.

There is an exception for holidays. Subsection (2) provides that the person in whose favour a residence order was made may remove the child from the UK for a period of less than one month.

Upon making a residence order, a court may at the same time grant leave for the child to be removed from the UK, either generally or for specified purposes. For example, where a child has family abroad and it would be in his/her interests to spend long holidays with them.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

SECTION 14 - ENFORCEMENT OF RESIDENCE
This section allows residence orders to be enforced using the mechanism set out in section 63(3) of the Magistrates’ Courts Act 1980. Section 63(3) is concerned with disobedience to an order of a magistrates’ court. In the event of disobedience, the court may order the person to pay up to £50 for each day of disobedience (up to a maximum of £5,000) or commit the person to prison until the default has been remedied (but subject to a maximum period of two months’ imprisonment).

Subsection (1) of this section treats a residence order for section 63(3) purposes as if it were an order requiring a child to be produced to the person in whose favour the order was made. Non-compliance can be punished under the section 63(3) powers.

In addition to the requirement that the arrangements settled by the residence order must have been breached, one further condition must be met. This is that the person who has breached the terms of the residence order must have been served with a copy of the order (subsection (2)).

A person with whom a child is to live under a residence order can also be proceeded against under this section - for example, if one parent failed to return a child in accordance with the terms of a joint residence order (subsection (3)).

SECTIONS 14A to 14G: SPECIAL GUARDIANSHIP
These sections were inserted into the Children Act 1989 by the Adoption and Children Act 2002. The background to the enactment of these provisions, and their broad effect, is described as follows by the Explanatory Notes to the 2002 Act:

“The Government promised in the White Paper (Adoption - A New Approach; Cm 5017, Department of Health, December 2000) to develop a new legal option called 'special guardianship'. This is intended to meet the needs of children for whom adoption is not appropriate, but who cannot return to their birth parents and could benefit from the permanence provided by a legally secure family placement. For example, some older children (who may, for instance, be being looked after in long term foster placements) do not wish to be adopted and have their legal relationship with their parents severed, but could benefit from greater security and permanence. Adoption may also not be the best option for some children being cared for on a permanent basis by members of their wider family. Some ethnic minority communities have religious or cultural difficulties with adoption in the form provided for in the law of England and Wales.

The Act amends the Children Act 1989 to provide for the new special guardianship order. It sets out who may apply for an order, the circumstances in which orders may be made and their nature and effect. The intention is that, in order to provide the child with the stability he needs, the special guardian has clear responsibility for all the day-to-day decisions about caring for the child or young person and for taking the decisions about his upbringing. But, unlike adoption, there is the possibility of discharge or variation of the order, and the child's legal relationship with his birth parents is not severed. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. Special guardians will have access to a range of support services under procedures similar to those provided for adoption support.”

SECTION 14A - SPECIAL GUARDIANSHIP ORDERS
The Explanatory Notes to the Adoption and Children Act 2002 (which inserted this section into this Act) describe this section as follows:

“Section 14A provides for who may apply for a special guardianship order and the application process. The person in whose favour a special guardianship order is made is a 'special guardian'. People may apply jointly to become special guardians. They need not be married. Subsection (2) provides that special guardians must be 18 or over and that the parents of a child may not become his special guardian. Subsections (3) to (5) make provision about who may apply for an order. A court may make a special guardianship order in respect of any child on the application of:

any guardian of the child;

a local authority foster carer with whom the child has lived for one year;

[a relative with whom the child has lived for one year. Such relatives were given the right to apply for special guardianship orders, without first obtaining the permission of the court, by an amendment made to this section by s.38 of the Children and Young Persons Act 2008 (the amendment came into force on 1 September 2009). For this purpose, “relative” is defined by s.105 of this Act as including a grandparent, brother, sister, uncle or aunt or step-parent (s.105 of this Act)];

anyone who holds a residence order with respect to the child, or has the consent of all those in whose favour a residence order is in force;

anyone with whom the child has lived for three out of the last five years;

where the child is in the care of a local authority, anyone with the authority's consent;

in any other case, anyone who has the consent of all those with parental responsibility for the child;

anyone else, including the child, who has the leave of the court to apply.

Under subsection (6) the court may also make special guardianship orders in any family proceedings concerning the welfare of a child if they consider an order should be made, even if no application has been made. Family proceedings are defined in section 8(3) of the Children Act 1989 and include adoption proceedings…When considering making a special guardianship order the child's welfare is the court's paramount consideration, and the welfare checklist in section 1(3) of the Children Act 1989 applies.

Subsections (7) onwards set out the application process. Applicants must give three months' written notice to the local authority of their intention to apply for the order. The only exception to this is where a person has the leave of the court to make a competing application for a special guardianship order at a final adoption order hearing, in which case the three-month period does not apply. This is in order to prevent the competing application delaying the adoption order hearing. On receipt of notice the local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters. Regulations may prescribe matters to be covered in the report. The local authority may arrange for someone else to carry out the investigation or prepare the report under subsection (10). It is intended to use these arrangements to ensure a proper assessment process is followed for special guardians. The court may not make an order unless it has received a report covering the suitability of the applicants. It is intended to provide in secondary legislation that a CAFCASS officer is to be appointed in appropriate special guardianship proceedings.”

Regulations made under this section
The Schedule to the Special Guardianship Regulations 2005 (S.I. 2005/1109) sets out the matters to be dealt with in the local authority reports that are required where an application for a special guardianship order is made.

The regulations are available at http://www.opsi.gov.uk/si/si2005/20051109.htm.

There are separate regulations for Wales, the Special Guardianship (Wales) Regulations 2005 (SI 2005/1513). These are available (as amended) here.

Guidance and other relevant material
The forms for making an application for a special guardianship order are available at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetFormsCat.do?court_forms_category=Children%20Act

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

SECTION 14B - SPECIAL GUARDIANSHIP ORDERS:
The Explanatory Notes to the 2002 Act state:

“Section 14B provides that before making a special guardianship order the court must consider whether or not to vary or discharge any other existing order made under section 8 of the Children Act 1989 (such as a contact order or residence order) and also whether a contact order (for example, to enable continued contact with the child's birth parents) should be made at the same time as the special guardianship order. The court may also on making the special guardianship order give leave for the child to be known by a new surname and give permission for the child to be taken out of the United Kingdom for any period longer than three months.”

Section 14B has been amended by the Children and Adoption Act 2006. The amendments mean that where any enforcement order (see the note to section 11J) or contact activity direction (see the note to section 11A) is in place, before making a special guardianship order, the court must also decide whether the enforcement order or contact activity direction should be discharged. These amendments are not yet in force.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The principle that an order should not be made unless that is better than making no order at all (the “no order principle”) applies where a court is considering whether to make an order under this section. See the note to section 1 of the Children Act 1989.

The court must have regard to the child welfare checklist contained in section 1 of the Children Act 1989 when it is considering whether to make, vary or discharge a special guardianship order. See the note to section 1 of the Children Act 1989.

The court may require a child welfare report to be produced in connection with proceedings on an application for a section 8 order. See further, the note to section 7 of the Children Act 1989.

SECTION 14C - SPECIAL GUARDIANSHIP ORDERS
The Explanatory Notes to the 2002 Act state:

“Section 14C sets out the effect of special guardianship orders. Subsection (1)(a) gives the special guardian parental responsibility for the child. Subject to any later order made under the Act, the special guardian may exercise parental responsibility to the exclusion of others with parental responsibility apart from another special guardian (subsection (1)(b)). An exception applies in those circumstances where the law provides that the consent of all parties with parental responsibility may be or is required (for example, the sterilisation of a child) (subsection (2)(a)). Subsections (3) and (4) provide that while an order is in force the child may only be known by a different surname or be removed from the United Kingdom for longer than three months with the consent of all those who have parental responsibility, or with the leave of the court.

The intention is that the special guardian has clear responsibility for all the day-to-day decisions about caring for the child or young person and for taking decisions about his upbringing. But the order retains the basic legal link with the birth parents, unlike adoption. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent or not to the child's adoption or placement for adoption (subsection 2(b)). Subsection (5) provides that the special guardian must also take reasonable steps to inform them if the child dies.”

Other relevant legislation
For the meaning of “parental responsibility”, see the note to section 3 of the Children Act 1989.

Section 10 (7A) of the Children Act 1989 provides that the leave of the court is always required in order for a person to apply for a residence order in respect of a child who is subject to a special guardianship order - for example, a parent could not apply for a residence order in such a case without the leave of the court.

The making of a special guardianship order discharges any care order or any order under section 34 of the Children Act 1989 (contact with children in care): see section 91 of the Children Act 1989.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

SECTION 14D – SPECIAL GUARDIANSHIP ORDERS: VARIATION AND DISCHARGE
The Explanatory Notes to the 2002 Act state:

“Section 14D provides that, unlike adoption orders, special guardianship orders can be varied or discharged on the application of:

the special guardian;

the child's parents or guardian (they may apply only with the leave of the court and leave is to be granted only if there has been a significant change of circumstances since the order was made);

any step-parent who has parental responsibility by virtue of section 4A (with the leave of the court, to be granted only if there has been a significant change of circumstances);

anyone who had parental responsibility immediately before the special guardianship order was made (with the leave of the court, to be granted only if there has been a significant change of circumstances);

the child (with the leave of the court);

if a care order is made in respect of the child, the local authority can apply to discharge the special guardianship order;

anyone who has a residence order in respect of the child.

Subsection (2) provides that the court may, during any family proceedings in which a question arises about the welfare of a child who is subject to a special guardianship order, vary or discharge the order in the absence of an application. [For the meaning of “family proceedings”, see the note to section 8 of the Children Act 1989.]”

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The court must have regard to the child welfare checklist contained in section 1of the Children Act 1989 when it is considering whether to vary or discharge a special guardianship order. See the note to section 1 of the Children Act 1989.

The fees payable on an application to the court under this section are set out in the Family Proceedings Fees Order 2008, which is available (as amended) here

SECTION 14E - SPECIAL GUARDIANSHIP ORDERS - SUPPLEMENTARY
Avoidance of Delay
This section contains the same delay-avoidance provision that applies to section 8 orders by virtue of section 11 of the Children Act 1989. Subsections (1) and (2) provide that, in any proceedings where a question of making, varying or discharging a special guardianship order arises, or any other question with respect to such an order arises, the court must

(a) draw up a timetable with a view to determining the question without delay; and

(b) give such directions as it considers appropriate for ensuring, so far as is reasonably practicable, that the timetable is adhered to.

Provision that may be made in special guardianship orders
Subsection (4) provides that a special guardianship order, or an order varying such an order, may have effect for a specified period.

Subsection (5) provides that certain of the powers available under section 11 (7) in the case of section 8 orders are also available in the case of special guardianship orders. This means that a special guardianship order may

(a) contain directions about how it is to be carried into effect;

(b) require specified persons to comply with conditions; and

SECTION 14F - SPECIAL GUARDIANSHIP SUPPORT SERVICES
This section is described as follows by the Explanatory Notes to the 2002 Act:

“Section 14F makes provision for local authority support services for special guardians, children subject to special guardianship orders and others. Each local authority must arrange to provide support, including counselling, advice and information, and such other services as are prescribed in regulations (subsection (1)). Subsection (2) provides that the power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support. Regulations will be made prescribing the circumstances where local authorities must, at the request of special guardians, children subject to special guardianship orders, their parents and other prescribed persons, carry out an assessment of that person's needs for special guardianship support services (subsection (3)). It is intended to use these regulations to ensure that local authorities put in place a range of support services to be available where appropriate for special guardians and children subject to special guardianship orders, their parents and, where appropriate, to others, which could include members of the birth family. Subsection (4) gives local authorities the discretion to carry out an assessment of need for support services at the request of any other person. Subsections (5) to (11) govern the assessment process and, where support services are to be provided, the arrangements for their provision. As with adoption support services, the needs assessment may be carried out at the same time as an assessment of that person's needs for any other purpose (subsection (10)). Again, the intention is to facilitate joined-up planning and provision of public services support. There is provision for local authorities to delegate assessments and the provision of special guardianship support services to other local authorities or prescribed persons (subsection (9)).”

Regulations made under this section
The Special Guardianship Regulations 2005 (S.I. 2005/1109) are made under this section. They set out in detail the obligations of local authorities in England to provide special guardianship support services.

The regulations are available at http://www.opsi.gov.uk/si/si2005/20051109.htm

There are separate regulations for Wales, the Special Guardianship (Wales) Regulations 2005 (S.I. 2005/1513). These are available at http://www.opsi.gov.uk/legislation/wales/wsi2005/20051513e.htm

SECTION 14G – SPECIAL GUARDIANSHIP SUPPORT SERVICES: REPRESENTATIONS
This section was repealed by the Health and Social Care (Community Health and Standards) Act 2003. Representations (including complaints) in connection with the provision of special guardianship support services are now dealt with under the general Children Act 1989 local authority complaints procedures: see further, the note to section 26 of the Children Act 1989.

SECTION 15 – ORDERS FOR FINANCIAL RELIEF WITH RESPECT TO CHILDREN
Subsection (1) of this section introduces Schedule 1 to the Act, which is concerned with financial relief for children.

Subsection (2) disapplies, in relation to orders under Schedule 1, the general powers of a magistrates’ court under s.60 of the Magistrates’ Courts Act 1980. S.60 of the 1980 Act gives a magistrates’ court or clerk various powers to revoke, vary or revive orders, such as maintenance orders. Schedule 1 itself provides for the variation or discharge of orders made under it.

Other relevant legislation
The child welfare “paramountcy principle” applies where, under Schedule 1, the court determines any question with respect to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The “avoidance of delay principle” applies where, in proceedings under Schedule 1, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

The principle that an order should not be made unless that is better than making no order at all (the “no order principle”) applies where a court is considering whether to make an order under Schedule 1. See the note to section 1 of the Children Act 1989.

The court may require a child welfare report to be produced where it is considering any question with respect to a child in proceedings under this section. See further, the note to section 7 of the Children Act 1989.

Guidance and other relevant material
Relevant court forms for applications for orders for financial relief under the Children Act 1989 are available at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetFormsCat.do?court_forms_category=Children%20Act

SECTION 16 – FAMILY ASSISTANCE ORDERS
This section permits the court to order a CAFCASS officer (or Welsh equivalent or local authority officer) to assist persons, including children, who are involved in various family proceedings. At the present time, such orders are comparatively rare. However, recent amendments made to section 16 by the Children and Adoption Act 2006 are likely to lead to more such orders being made.

When may an order be made?
Under subsection (1), an order may be made in family proceedings in which the court has power to make an order under this Part of the Act in respect of a child (for the meaning of “family proceedings”, see the note to section 8 of the Children Act 1989). A family assistance order may be made whether or not any other order is made.

An additional requirement under subsection (3) is that the court must be satisfied that each person named in the order (other than the child) has consented to the order. There used to be a further requirement, namely that the circumstances were exceptional. However, that was removed in October 2007 when amendments made to section 16 by the Children and Adoption Act 2006 came into force.

For whose benefit may an order be made?
A family assistance order may be made only for the benefit of certain individuals (subsection (2)). These are:

(i) a parent, guardian or special guardian of the child in respect of whom the court has power to make an order under this Part;

(ii) a person with whom the child is living;

(iii) a person in whose favour a contact order is in force with respect to the child;

(iv) the child.

The effect of a family assistance order
A family assistance order requires a CAFCASS officer/Welsh equivalent or an officer of a local authority to “advise, assist and (where appropriate) befriend” the person named in the order. However, if an authority does not consent to an office of theirs being specified in the order, the officer may only be specified if the child concerned lives, or will live, in the authority’s area (subsection (7)).

The order can also place requirements upon, for example, the person to be assisted. Subsection (4) permits the court to direct a person named in the order to take steps specified in the order. Steps may be specified only with a view to enabling the officer providing assistance to be kept informed of the address of any person named in the order, and for the officer to be enabled to visit any person named in the order.

As a result of amendments made by the Children and Adoption Act 2006 (which came into force in October 2007), the maximum length of a family assistance order has been extended from 6 to 12 months.

Relationship with section 8 orders
Under subsection (6), where a family assistance order is made to be in force at the same time as a section 8 order, the family assistance order may direct the officer providing assistance to report to the court on such matters relating to the section 8 order as the court may require. This may include the question whether the section 8 order ought to be varied or discharged.

New provision as to family assistance orders in connection with contact
Under subsection (4A), where a family assistance order is to be in force at the same time as a contact order, the assistance order “may direct the officer concerned to give advice and assistance as regards establishing, improving and maintaining contact” to such persons as are specified in the order.

The “avoidance of delay principle” applies where, in proceedings under this section, a question arises as to the upbringing of a child. See the note to section 1 of the Children Act 1989.

SECTION 16A – RISK ASSESSMENTS
This is a new section, which was added to the Children Act by the Children and Adoption Act 2006. The Explanatory Notes to the 2006 Act say that s.16A:

“requires CAFCASS officers [and their Welsh equivalent] to carry out a risk assessment and provide it to the court if, in the course of carrying out any function in private law family proceedings under the 1989 Act, the officer is given cause to suspect that the child concerned is at risk of harm. Private family law proceedings include applications for residence and contact orders and applications for enforcement of contact orders. The duty applies whenever an officer is involved in any function connected with such proceedings including, for instance, preparing a report for the court under section 7 of the 1989 Act, monitoring of contact orders as provided for by new section 11H of the 1989 Act or working on alternative dispute resolution. It also applies where an officer is carrying out functions under a family assistance order”

PART III – LOCAL AUTHORITY SUPPORT FOR CHILDREN AND FAMILIES

SECTION 17 - PROVISION OF SERVICES FOR CHILDREN IN NEED, THEIR FAMILIES AND OTHERS
This section is the legal linchpin for the vast range of services that local authorities provide for children and their families. It also provides the meaning of the key term “child in need”.

The general duty
Subsection (1) imposes a “general duty” upon local authorities. This requires local authorities to do two things:

(a) to safeguard and promote the welfare of children in their area who are in need; and

(b) so far as is consistent with that first duty, to promote the upbringing of these children in need by their families.

The duty is to be discharged by providing a “range and level of services appropriate to those children’s needs”.

In connection with this general duty, local authorities are given a number of “specific” powers duties which are set out in Part I of Schedule 2 to the Children Act 1989. These powers and duties are given “principally for the purpose of facilitating the discharge” of the general duty (subsection (2): in other words they should be exercised with a view to helping achieve the objectives underlying the general duties. The Secretary of State (the Welsh Ministers - Welsh central government - in Wales) has the power to add to the duties and powers set out in Schedule 2 (subsection (4)).

The delivery of services
Section 17 makes provision about the nature of the services that may be provided in the exercise of the general duty, and the manner in which they are to be provided.

Services for families
Subsection (3) provides that a service may be provided to the family of a child in need (or a family member), as well as to the child himself. The condition that must be met for the provision of family services is that the service is provided “with a view to safeguarding or promoting the child’s welfare”.

For this purpose, “family” includes any person with parental responsibility for the child in need as well as any person “with whom he has been living” (subsection (10). This is the definition that applies throughout this Part of the Children Act. For the persons with parental responsibility for a child, see the note to section 2 of the Children Act 1989.

Involvement of children
The general principle is that, where they are able to do so, children must be involved in service provision decisions. Subsection (4A) requires that, before determining what (if any) services to provide, the local authority shall (so far as is reasonably practicable and consistent with the child’s welfare):

·ascertain the child’s wishes and feelings regarding the provision of those services; and
·give due consideration (having regard to the child’s age and understanding) to the ascertained wishes and feelings.

Services provided by voluntary organisations and others
Local authorities are expected to assist the development of children’s services by other bodies. Subsection (5)(a) provides that authorities must facilitate the provision by others (in particular, voluntary organisations) of services which the authority has the power to provide under the following provisions:

·this section;
·section 18 (day care for pre-school and other children);
·section 23 (accommodation for looked-after children);
·sections 23B to 23D and 24A and 24B (various leaving care services).

Contracting out the provision of services
Subsection (5)(b) provides that authorities may make arrangements for any person to act on their behalf in the provision of any service provided under this section or under any of the sections mentioned in subsection (5)(a).

Clarification of the range of services that may be provided under s.17
The purpose of subsection (6) is to make it clear that the provision of services can extend beyond the performance of some activity for the benefit of a child in need and/or her family. It states that the services that may be provided include accommodation, and assistance may be given by way of “benefits in kind” or (in exceptional circumstances) assistance by way of cash. A benefit in kind is a non-cash benefit such as, say, a washing machine or other domestic equipment.

It should be noted that, by virtue of amendments made by the Adoption and Children Act 2002, a child provided with accommodation under this section is not, merely for that reason, a “looked-after child”: see the note to section 22 of the Children Act 1989.

Provision of Assistance Subject to Conditions

The conditions that may be imposed
Subsection (7) deals with the placing of conditions upon the provision of “assistance” under this section. The reference to “assistance” is clearly a reference back to the previous subsection which is the only other provision of the section that refers to assistance. Therefore, subsection (7) applies only to the provision of benefits in kind and cash. For the general rules about the recovery of charges for services, see the note to section 29 of the Children Act 1989.

Subsection (7) permits a local authority to:

(i) provide unconditional assistance;

(ii) provide assistance subject to conditions as to the repayment of the assistance or of its value (in whole or in part).

Means-testing
Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and each parent (subsection (8)).

There is a bar on recovering from less well-off parents. Subsection (9) provides that no person shall be liable to repay any assistance, or the value of any assistance, when s/he is in receipt of certain benefits (income support, certain child tax credits and income-based jobseeker’s allowance). Regulations may set out which tax credits count for this purpose (subsection (12)).

The Children Act 1989, Section 17(12) Regulations 2003 (S.I. 2003/2077) have been made under this subsection. They are available at http://www.opsi.gov.uk/si/si2003/20032077.htm

The meaning of “child in need”
Services may be provided under this section to a “child in need” only. The precise meaning of that term, therefore, is of some importance. It is defined by subsection (10), which says that a child is to be taken to be in need if s/he falls within any of the following descriptions. The width of the definition should be noted.

Child’s health calls for services
Here, the question to be asked is a “what if” one – what would happen to a child if services were not provided. By subsection (10)(a) and (b), a child is in need if any of the following applies:

(i) s/he is unlikely to achieve or maintain a reasonable standard of health without the provision of services under this Part of the Children Act;

(ii) s/he is unlikely to have the opportunity of achieving or maintaining a reasonable standard of health without the provision of services;

(iii) his/her health is likely to be significantly impaired without the provision of services;

(iv) his/her health is likely to be further impaired without the provision of services.

For this purpose, “health” means physical or mental health (subsection (11)).

Child’s development calls for services
Again, the focus of this limb of the definition, as with the health limb, is what would happen if services were not provided. By subsection (10)(a), a child is in need if any of the following applies:

(i) s/he is unlikely to achieve or maintain a reasonable standard of development without the provision of services under this Part; (ii) s/he is unlikely to have the opportunity of achieving or maintaining a reasonable standard of development without the provision of services;

(iii) his/her development is likely to be significantly impaired without the provision of services;

(iv) his/her development is likely to be further impaired without the provision of services.

For this purpose, “development” means physical, intellectual, emotional, social or behavioural development (subsection (11)).

Disabled children
A disabled child is a child in need. Under subsection (11), a child is disabled if he has any of the following attributes:

(i) s/he is blind;

(ii) s/he is deaf;

(iii) s/he is dumb;

(iv) s/he suffers from “mental disorder of any kind”;

(v) s/he is substantially and permanently handicapped by illness, injury or “congenital deformity”.

In addition, the Secretary of State (National Assembly, in Wales) has the power to specify in regulations other disabilities so that, if the child is substantially and permanently handicapped by that disability, s/he is also disabled for “child in need” purposes.

Other relevant legislation
For the general rules about charging for services provided under section 17, see the note to section 29 to the Children Act 1989.

Guidance and other relevant material
Assessment
The Department of Health’s “Framework for the Assessment of Children in Need and their Families” is available at http://www.archive.official-documents.co.uk/document/doh/facn/fw-00.htm . This is section 7 or policy guidance and so must be followed in the absence of a good reason not to do so.

The National Assembly for Wales’s “Framework for the Assessment of Children in Need and their Families” is available at http://www.childrenfirst.wales.gov.uk/content/key_pub.htm

DfES guidance on the common assessment framework for children and young people is available at http://www.everychildmatters.gov.uk/resources-and-practice/IG00063/. This guidance is actually issued under the Children Act 2004 which means that local authorities must have regard to it.

The National Service Framework for Children
The executive summary of the National Service Framework for children (England) is available at http://www.dh.gov.uk/assetRoot/04/09/05/52/04090552.pdf. The core standards are available at http://www.dh.gov.uk/assetRoot/04/09/05/66/04090566.pdf. Other relevant documentation under the National Service Framework initiative is as follows:

·the standard for children and young people who are ill, which is available at http://www.dh.gov.uk/assetRoot/04/10/40/32/04104032.pdf;
·the standard for disabled children and young people and those with complex health needs, which is available at http://www.dh.gov.uk/assetRoot/04/09/05/56/04090556.pdf;
·the standard on the mental health and psychological well-being of children and young people, which is available at http://www.dh.gov.uk/assetRoot/04/09/05/60/04090560.pdf;
·models of good practice for the mental health standard are available at http://www.dh.gov.uk/assetRoot/04/14/06/79/04140679.pdf;
·the National Service Framework complex disability exemplar, which is available at http://www.dh.gov.uk/assetRoot/04/12/38/15/04123815.pdf;
·the National Service Framework autism exemplar, which is available at http://www.dh.gov.uk/assetRoot/04/09/05/71/04090571.pdf;

Disabled children
Department of Health guidance on local authority responsibilities towards young carers and carers of disabled children is available at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4117866.pdf. This is section 7 or policy guidance and so local authorities must follow it unless they have a good reason not to do so.

The Department of Health has issued guidance about the provision of social care for deafblind children and adults, which is available at http://www.dh.gov.uk/assetRoot/04/01/27/09/04012709.pdf. This is section 7 or policy guidance and so local authorities must follow it unless they have a good reason not to do so.

Department of Health good practice guidance on the transition from children’s to adults’ services for disabled children is available at http://www.dh.gov.uk/assetRoot/04/13/21/49/04132149.pdf

General guidance
Department of Health guidance on the use of section 17 to accommodate a child (as opposed to section 20) is available at http://www.dh.gov.uk/assetRoot/04/01/27/56/04012756.pdf. This is section 7 or policy guidance and so local authorities must follow it unless they have a good reason not to do so. The guidance for Wales is available at http://www.childrenfirst.wales.gov.uk/content/circular-23-2005-e.pdf . These documents also provide guidance about local authority responsibilities towards unaccompanied asylum-seeking children.

Multi-agency working
DfES guidance on the lead professional for the delivery of multi-agency services for children is available at http://www.everychildmatters.gov.uk/resources-and-practice/IG00064/ This guidance is actually issued under the Children Act 2004 which means that local authorities must have regard to it.

The DfES has issued guidance entitled “Working with Voluntary and Community Organisations to Deliver Change for Children and Young People”. It is available at http://www.everychildmatters.gov.uk/_files/68732D0963E1F4367758569074B6F79A.pdf.

A set of DfES materials about the delivery of multi-agency services to children is available at http://www.everychildmatters.gov.uk/deliveringservices/multiagencyworking/managerstoolkit/

DfES guidance on information sharing in the delivery of multi-agency services is available at http://www.everychildmatters.gov.uk/resources-and-practice/IG00065/

SECTION 17A – DIRECT PAYMENTS
This section was inserted into the Children Act 1989 by the Health and Social Care Act 2001. It provides for regulations to be made about direct payments to be made to (usually) parents in place of the direction provision of services for children in need. The recipient of the direct payment uses it to purchase directly the required care services. The Explanatory Notes to the 2001 Act describe this section as follows:

“Within the revised section 17A of the Children Act 1989: subsection (1) enables regulations to make provision for and in connection with requiring or authorising a local authority to make a direct payment to an individual who fulfils the requirements of the scheme and agrees to be part of it.

Subsection (2) specifies the persons to whom a direct payment may be made. These persons are: a person with parental responsibility for a disabled child; a disabled person with parental responsibility for a child; and a disabled 16 or 17 year old. It also specifies that the local authority must have decided for the purposes of section 17 of the Children Act 1989 that the needs of the child in question call for them to provide services….

Subsection (4) provides that regulations under this section must specify that direct payments to the categories of people that this subsection applies to are to be gross payments with no contribution being required from them (see subsection (5)).

Subsection (5) specifies the persons from whom a contribution may not be required. They are: a person with parental responsibility for a disabled child, or a disabled person with parental responsibility for a child, where the child is aged 16 or 17; or a person who is in receipt of income support, working families' tax credit or a disabled person's tax credit under Part 7 of the Social Security Contributions and Benefits Act 1992 or of an income-based jobseeker's allowance.

Subsection (6) defines ‘disabled’ in relation to an adult by reference to the meaning given by section 17(11) of the Children Act 1989 in relation to a child.”

Regulations made under this section
The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003 (S.I. 2003/762) have been made under this section. The regulations set out the circumstances in which direct payments must be paid in lieu of the direct provision of services to, for example, a disabled child and deal with related matters such as monitoring, conditions of payment and recovery of mis-spent direct payments.

The English Regulations (as amended) are available here
The above regulations will cease to have effect on 9 November 2009, upon the coming into force of the Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2009 (SI 2009/1887). The 2009 regulations are available at http://www.opsi.gov.uk/si/si2009/uksi_20091887_en_1

There are separate regulations for Wales: the Community Care, Services for Carers and Children’s Services (Wales) Regulations 2004 (S.I. 2004/1748). The Welsh Regulations (as amended) are available here

Guidance and other relevant material
The Department of Health’s guidance on direct payments (in England) is available at http://www.carers.gov.uk/pdfs/dpguidance.pdf

The guidance for Wales is available at http://www.allwalesunit.gov.uk/index.cfm?articleid=2209

The Department of Health’s guide to the direct payments system is available at http://www.dh.gov.uk/assetRoot/04/09/73/99/04097399.pdf.

SECTION 17B – VOUCHERS FOR PERSONS WITH PARENTAL RESPONSIBILITY FOR DISABLED CHILDREN
This section was inserted into the Children Act by the Carers and Disabled Children Act 2000. The Explanatory Notes to that Act describe it as follows:

“This section enables the Secretary of State or, as the case may be, the National Assembly for Wales, to make provision in regulations for local authorities to issue vouchers for short term breaks. Vouchers are defined in subsection (2) and will enable the person cared for to arrange for someone to provide services for him, in lieu of the care which would otherwise have been provided to him by the carer, either at home or in residential accommodation whilst the carer takes a break from caring. It is intended that the regulations will include provision for vouchers, whether expressed in terms of money or for the delivery of a service for a period of time, to be redeemed in exchange for services delivered by local authority approved providers.”

Regulations made under this section
The Carers and Disabled Children (Vouchers) (England) Regulations 2003 (S.I. 2003/1216) have been made under this section. The regulations are available at http://www.opsi.gov.uk/si/si2003/20031216.htm.

No similar regulations have been made for Wales.

Guidance and other relevant materialThe Department of Health’s guidance on the use of vouchers is available at http://www.carers.gov.uk/77909cdca00vouchers.pdf . Part of the guidance is section 7 or policy guidance and therefore must be followed in the absence of a good reason not to do so.

SECTION 18 – DAY CARE FOR PRE-SCHOOL AND OTHER CHILDREN
This section sets out local authorities’ duties and powers to provide day care.

Day care: children in need
Under subsection (1), a local authority must provide such day care as “is appropriate” for children in need in their area who are aged five or under and not attending schools. For the meaning of “child in need”, see the note to section 17 of the Children Act 1989.

For the purposes of this section, “day care” means “any form of care or supervised activity provided for children during the day (whether or not it is provided on a regular basis)”.

Powers to provide day care
Under subsection (2), a local authority in Wales may also (but does not have to) provide day dare for under-fives within their area who are not in need and are not attending school. The powers of a local authority in England in this respect are now to be found in the Childcare Act 2006

Services for others involved in the provision of day care
Subsection (3) permits a local authority to provide “facilities” (which is said to include training, advice, guidance and counselling) for day carers and others (such as parents) who accompany children while they are in day care.

Duty to provide outside-school care for children in need
This section (despite its somewhat misleading title) also confers important obligations upon local authorities in respect of children in need in their areas who go to school. Subsection (5) requires authorities to provide “such care as is appropriate” for these children outside school hours or during school holidays.

Under subsection (6), local authorities in Wales also have the power to provide similar care and supervised activities for schoolchildren in their area who are not in need. The powers of a local authority in this respect are now to be found in the Childcare Act 2006

Changes made by the Childcare Act 2006
The Childcare Act 2006 altered, will alter the functions of local authorities in England under this section (but not in Wales). The 2006 Act removed local authorities’ general powers to provide childcare under this section (but not the duties in respect of children in need which are to remain in place). Presumably, this is because the 2006 Act provides new general powers for local authorities in England to provide day time care for children.

Other relevant legislation
Section 17 (5) of the Children Act 1989 requires local authorities to facilitate the provision by others (in particular, voluntary organisations) of services which the authority has the power to provide under this section. Section 17 (6) provides that authorities may also contract out these services.

For the general rules about charging for services provided under section 18, see the note to section 29 to the Children Act 1989.

SECTION 19 – REVIEW OF PROVISION FOR DAY CARE, CHILD MINDING ETC
This section was repealed by the Education Act 2002.

SECTION 20 – PROVISION OF ACCOMMODATION FOR CHILDREN: GENERAL
The general purpose of this section is to ensure that children in need who cannot be looked after by their parents are provided with accommodation by local authorities. In addition, it also confers various powers on local authorities to accommodate children whether or not they are in need.

The duties to accommodate children in need
Duty to accommodate where parental care is simply unavailable

Under subsection (1), a local authority must accommodate certain children in need within their areas (for the meaning of “child in need”, see the note to section 17 of the Children Act 1989). The children to be accommodated are those who appear to the local authority to be afflicted by any one of the following circumstances:

(i) that there is no person with parental responsibility for the child (for the persons with parental responsibility for a child, see the note to section 2 of the Children Act 1989);

(ii) that the child is lost;

(iii) that the child has been abandoned;

(iv) that the person who has been caring for the child is prevented from providing him/her with suitable accommodation or care. It is immaterial whether that person is permanently prevented from providing accommodation and care. It also does not matter what the reason is for the person having been prevented from providing accommodation or care.

It is possible for a child to be accommodated by a local authority under subsection (1) even if s/he is not ordinarily resident in the authority’s area: subsection (1) refers merely to children who are “in” the authority’s area. Accordingly, subsection (2) provides that, in such a case, the authority in whose area the child is ordinarily resident may, within three months of being notified in writing of the child’s accommodation, take over the provision of accommodation for the child.

Accommodation for over-16s: serious prejudice cases
Subsection (3) sets out another case in which accommodation must be provided. It applies only in the case of children in need who have attained the age of sixteen. Accommodation must be provided for such a child if the authority “considers” that the child’s welfare would be seriously prejudiced if they did not provide him with accommodation.

Powers to provide accommodation
This section provides two powers to provide accommodation, neither of which requires the child in question to be in need. They are:

(i) under subsection (4), the authority may provide accommodation for any child in their area if the authority consider that to do so would safeguard or promote the child’s welfare. Accommodation may be provided under this section even though there is a person with parental responsibility for the child who is able to provide him/her with accommodation;

(ii) under subsection (5), a local authority may provide accommodation for any person who has reached the age of 16, but is under 21, if the authority considers that to do so would safeguard or promote his/her welfare. This power is somewhat different from the other powers and duties under this section. Under those powers and duties, the local authority is free to decide the means by which accommodation is provided. Under subsection (5), however, the accommodation must be provided in a community home.

Involvement of children in accommodation decisions
The general principle is that, where they are able to do so, children must be involved in accommodation decisions. Subsection (6) requires that, before providing accommodation under any subsection of this section, the local authority shall (so far as is reasonably practicable and consistent with the child’s welfare):

·ascertain the child’s wishes and feelings regarding the provision of those services; and
·give due consideration (having regard to the child’s age and understanding) to the ascertained wishes and feelings.

Parental Veto
The general position
Parents can prevent accommodation being provided under this section. This is why a child accommodated under this section is often referred to as being “voluntarily” accommodated. Subsection (7) provides that accommodation may not be provided under this section if there is an objection from a person with parental responsibility for the child who is “willing and able” to provide accommodation for the child (or to arrange for accommodation to be provided).

Subsection (8) goes on to provide that a person with parental responsibility may “at any time” remove the child from accommodation provided under this section.

The exceptions
The effective parental veto under subsection (7) and (8) does not apply in certain cases. This is where certain individuals agree to the child being looked after in the accommodation (and so these can trump the person with Parental Responsibility who objects to the provision of accommodation). The individuals are:

(i) a person in whose favour a residence order has been made with respect to the child;

(ii) a person who is a special guardian of the child;

(iii) a person who has care of the child by virtue of an order made under the High Court’s inherent jurisdiction.

Where there is more than one such individual, both must agree (subsection (10)).

The veto also does not apply where a child who has turned 16 agrees to be accommodated under this section (subsection (11).

Guidance and other relevant material
Department of Health guidance on the use of section 17 to accommodate a child (as opposed to section 20) is available at http://www.dh.gov.uk/assetRoot/04/01/27/56/04012756.pdf. This is section 7 or policy guidance and so local authorities must follow it unless they have a good reason not to do so. The guidance for Wales is available at http://www.childrenfirst.wales.gov.uk/content/circular-23-2005-e.pdf

There are separate regulations for Wales, the Special Guardianship (Wales) Regulations 2005 (S.I. 2005/1513). These are available (as amended) here