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Child Protection 

Child Protection
Chapter:
Child Protection
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806103.003.0013
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Subscriber: null; date: 15 August 2018

1.13.1 Introduction

The application of the law and the use of measures to protect children, particularly those relating to ‘police protection’, are among some of the most contentious issues that any police officer may be involved in.

1.13.2 Child Abduction

There are two offences of abducting children; the first applies to people ‘connected with the child’, the second to others ‘not connected with the child’.

1.13.2.1 Person Connected with Child

Offence Child Abduction—Person Connected with Child—Child Abduction Act 1984, s. 1

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Child Abduction Act 1984, s. 1 states:

  1. (1) Subject to subsections (5) and (8) below, a person connected with a child under the age of 16 commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.

‘Connected with a Child’

The Child Abduction Act 1984, s. 1 states:

  1. (2) A person is connected with the child for the purposes of this section if—

    1. (a) he is a parent of the child; or

    2. (b) in the case of a child whose parents were not married to each other at the time of his birth, there are reasonable grounds for believing that he is the father of the child; or

    3. (c) he is a guardian of the child; or

    4. (ca) he is a special guardian of the child; or

    5. (d) he is a person named in a child arrangements order as a person with whom the child is to live; or

    6. (e) he has custody of the child.

Keynote

Special Guardian

A ‘special guardian’ is created by a Special Guardian Order (SGO). A SGO fundamentally secures the child’s long-term placement and is an order made by the court appointing one or more individuals to be the child’s ‘special guardian’. It is a private law order made under the Children Act 1989 and is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement. The order can enable a child to remain in his/her family as, unlike adoption, it does not end the legal relationship between a child and his/her parents.

A SGO usually lasts until the child is 18.

A parent of a child may not be appointed as a child’s special guardian.

Child Arrangements Order

Section 8(1) of the Children Act 1989 states that a child arrangements order means an order regulating arrangements relating to any of the following:

  1. (a) with whom a child is to live, spend time or otherwise have contact, and

  2. (b) when a child is to live, spend time or otherwise have contact with any person.

‘Appropriate Consent’

The Child Abduction Act 1984, s. 1 states:

  1. (3) In this section ‘the appropriate consent’ in relation to a child, means—

    1. (a) the consent of each of the following—

      1. (i) the child’s mother;

      2. (ii) the child’s father, if he has parental responsibility for him;

      3. (iii) any guardian of the child;

      4. (iiia) any special guardian of the child;

      5. (iv) any person named in a child arrangements order as a person with whom the child is to live;

      6. (v) any person who has custody of the child; or

    2. (b) the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or

    3. (c) if any person has custody of the child, the leave of the court which awarded custody to him.

Keynote

This offence can only be committed by those people listed in s. 1(2). Such a person must either take, or be responsible for sending, the child out of the United Kingdom him/herself. This offence is not committed by holding a child within the United Kingdom, or by failing to return a child who has previously been taken abroad (R (On the Application of Nicolaou) v Redbridge Magistrates’ Court [2012] EWHC 1647 (Admin)). The taking or sending must be shown to have been done without the consent of each of those persons listed in s. 1(3)(a) or, if there is a custody order in force the court’s permission must be sought. Alternatively, the leave of the court under part II of the Children Act 1989 will suffice.

The consent of the DPP is needed before a charge of child abduction is brought under this section (s. 4(2)): there are also restrictions on charging kidnapping (as to which, see chapter 1.10) where the offence involves an offence under s. 1 by a person connected with the child (s. 5).

1.13.2.2 Defence for Person Connected with a Child

The Child Abduction Act 1984, s. 1 states:

  1. (4) A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if—

    1. (a) he is a person named in a child arrangements order as a person with whom the child is to live, and he takes or sends the child out of the United Kingdom for a period of less than one month; or

    2. (b) he is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months.

  2. (4A) Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989.

  3. (5) A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if—

    1. (a) he does it in the belief that the other person—

      1. (i) has consented; or

      2. (ii) would consent if he was aware of all the relevant circumstances; or

    2. (b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or

    3. (c) the other person has unreasonably refused to consent.

Keynote

A further provision (s. 1(5A)) states that the defence at s. 1(5)(c) will not apply if the person who refused to consent is a person:

  • named in a child arrangements order as a person with whom the child is to live; or

  • who has custody of the child; or

  • who is a special guardian of the child; or

  • is, by taking or sending the child out of the United Kingdom, acting in breach of a court order in the United Kingdom.

1.13.2.3 Person Not Connected with Child

Offence Child Abduction—Person Not Connected with Child—Child Abduction Act 1984, s. 2

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Child Abduction Act 1984, s. 2 states:

  1. (1) Subject to subsection (3) below, a person other than one mentioned in subsection below, commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of 16—

    1. (a) so as to remove him from the lawful control of any person having lawful control of the child: or

    2. (b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.

  2. (2) The persons are—

    1. (a) where the father and mother of the child in question were married to each other at the time of his birth, the child’s father and mother;

    2. (b) where the father and mother of the child in question were not married to each other at the time of his birth, the child’s mother; and

    3. (c) any other person mentioned in section 1(2)(c) to (e) above.

Keynote

This offence will include keeping a child in the place where he/she is found and inducing the child to remain with the defendant or another person.

The consent of the victim is irrelevant.

The word ‘remove’ for the purpose of s. 2(1)(a) means effectively a substitution of authority by a defendant for that of the person lawfully having it and physical removal from a particular place is not required (Foster v DPP [2004] EWHC 2955 (Admin)).

Section 2(1)(a) requires the child there and then to be in the lawful control of someone entitled to it when he/she is taken or detained, whereas s. 2(1)(b) requires only that the child be kept out of the lawful control of someone entitled to it when taken or detained. Whether or not a person is under the lawful control of another is a question of fact (R v Leather [1993] Crim LR 516). A child can be removed from lawful control without necessarily being taken to another place. It may suffice if the child is deflected into some unauthorised activity induced by the defendant.

1.13.2.4 Defence for Person Not Connected with a Child

The Child Abduction Act 1984, s. 2 states:

  1. (3) … it shall be a defence for [the defendant] to prove—

    1. (a) where the father and mother of the child in question were not married to each other at the time of his birth—

      1. (i) that he is the child’s father; or

      2. (ii) that, at the time of the alleged offence, he believed, on reasonable grounds, that he was the child’s father; or

    2. (b) that, at the time of the alleged offence, he believed that the child had attained the age of 16.

Keynote

The defence under s. 2(3)(a) of the Child Abduction Act 1984 will not apply where D mistakenly takes the wrong child from a nursery, thinking it to be his daughter, although it is just possible that D may, in such circumstances, be able to advance a defence of reasonable excuse under s. 2(1) (R v Berry [1996] 2 Cr App R 226).

1.13.3 Child Cruelty

Offence Child Cruelty—Children and Young Persons Act 1933, s. 1

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Children and Young Persons Act 1933, s. 1 states:

  1. (1) If any person who has attained the age of 16 years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature), that person shall be guilty of an offence…

Keynote

This offence may be considered to fall into two broad categories:

  • instances of violent assault;

  • cases of cruelty and neglect.

Instances of violent assault may be more appropriately dealt with by charging with assault offences.

To be convicted of the offence, D must be over 16 at the time of the offence and have ‘responsibility’ for the child. Responsibility for a child or young person can be shared and whether a person had such responsibility in each case will be a matter of both fact and law (Liverpool Society for the Prevention of Cruelty to Children v Jones [1914] 3 KB 813). Anyone having parental responsibility or any other legal liability to maintain a child or young person will be presumed to have responsibility for that child and that responsibility does not cease simply because the person ceases to have care of the child. Others such as babysitters may also have ‘responsibility’ for the child while in their care (see generally s. 17).

The Act makes provisions and presumptions in relation to issues of causation. So, for example, if a parent or other person legally liable to maintain the child or young person, or a guardian, has failed to provide adequate food, clothing, medical aid or lodging for the child or young person, he/she will be deemed to have neglected the child or young person for the above purposes (s. 1(2)).

Similarly, a person will be presumed to have neglected the child where it is proved that the child was an infant under three years old who died as a result of suffocation (other than by disease or blockage of the airways by an object) while in bed with someone of 16 years or over who was under the influence of drink or a prohibited drug when he/she went to bed or at any later time before the suffocation (s. 1(2)(b)).

The reference in s. 1(2)(b) to the infant being ‘in bed’ with another (‘the adult’) includes a reference to the infant lying next to the adult in or on any kind of furniture or surface being used by the adult for the purpose of sleeping (and the reference to the time when the adult ‘went to bed’ is to be read accordingly) (s. 1(2A)). A drug is a prohibited drug for the purpose of s. 1(2)(b) in relation to a person if the person’s possession of the drug immediately before taking it constituted an offence under s. 5(2) of the Misuse of Drugs Act 1971.

A defendant may be charged with the above offence even where the child has died (s. 1(3)(b)).

Section 1 creates only one single offence, albeit one that can be committed in many different ways, by both positive acts (assault, ill-treatment, abandonment or exposure) and omission (neglect) (R v Hayles [1969] 1 QB 364). Although any aspect of neglect must be shown to have occurred in a manner likely to cause unnecessary suffering or injury to health, there is no need to show that any such suffering or injury actually came about.

1.13.4 Police Powers under the Children Act 1989

The police have specific statutory powers to deal with the threat of significant harm posed to children and these are set out below.

Section 46 of the Children Act 1989 states:

  1. (1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—

    1. (a) remove the child to suitable accommodation and keep him there; or

    2. (b) take such steps as are reasonable to ensure the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

  2. (2) For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection.

Keynote

For most purposes of the 1989 Act, someone who is under 18 years old is a ‘child’ (s. 105).

The wording of s. 46(1) means that an officer may use the powers at s. 46(1)(a) and (b) if he/she has reasonable cause to believe that, if the powers are not used, a child is likely to suffer significant harm. The issues arising from similar wording in relation to powers of arrest have been considered by the courts on a number of occasions. Generally, tests of reasonableness impose an element of objectivity and the courts will consider whether, in the circumstances, a reasonable and sober person might have formed a similar view to that of the officer.

‘Harm’ is defined under s. 31(9). It covers all forms of ill treatment including sexual abuse and forms of ill treatment that are not physical. It also covers the impairment of health (physical or mental) and also physical, intellectual, emotional, social or behavioural development. The definition also extends to impairment suffered from seeing or hearing the ill-treatment of any other person.

When determining whether harm to a child’s health or development is ‘significant’, the child’s development will be compared with that which could reasonably be expected of a similar child (s. 31(10)).

The power under s. 46 is split into two parts:

  • a power to remove a child to suitable accommodation and keep him/her there, and

  • a power to take reasonable steps to prevent the child’s removal from a hospital or other place.

The longest a child can spend in police protection is 72 hours (s. 46(6)). It should be remembered that this is the maximum time that a child can be kept in police protection, not the norm.

As soon as is reasonably practicable after using the powers under the Act, the ‘Initiating Officer’ (the officer who takes the child into police protection and undertakes the initial inquiries) must do a number of things as set out above. These include:

  • telling the local authority within whose area the child was found what steps have been, and are proposed to be, taken and why. This aspect of communicating with the local authority is a critical part of the protective powers;

  • giving details to the local authority within whose area the child is ordinarily resident of the place at which the child is being kept;

  • telling the child (if he/she appears capable of understanding) of what steps have been taken and why, and what further steps may be taken;

  • taking such steps as are reasonably practicable to discover the wishes and feelings of the child;

  • making sure that the case is inquired into by a ‘designated officer’ (see para. 1.13.4.1);

  • taking such steps as are reasonably practicable to inform:

    • the child’s parents

    • every person who is not the child’s parent but who has parental responsibility for the child and

    • any other person with whom the child was living immediately before being taken into police protection,

  • of the steps that the officer has taken under this section, the reasons for taking them and the further steps that may be taken with respect to the child. This element of informing the child, parent and/or relevant carers of what is happening and why is also a vital part of the protective process.

Where the child was taken into police protection by being removed to accommodation which is not provided by or on behalf of a local authority or as a refuge (under s. 51), the officer must, as soon as is reasonably practicable after taking a child into police protection, make sure that the child is moved to accommodation provided by the local authority. Every local authority must receive and provide accommodation for children in police protection where such a request is made (s. 21).

The ‘Initiating Officer’ and the ‘Designated Officer’ must not carry out these two separate roles (Home Office Circular 17/2008). The Circular also states that a police station is not ‘suitable accommodation’ and children should not be brought to a police station except in exceptional circumstances, such as a lack of immediately available local authority accommodation, and then only for a short period. On no account should a child who has been taken into police protection be taken to the cell block area of a police station.

When considering action under s. 46, it is possible that the child may already be the subject of an Emergency Protection Order (EPO) applied for by a local authority or authorised body under s. 44.

In considering the proper approach under these circumstances the Court of Appeal has held that:

  • There is no express provision in the Act prohibiting the police from invoking s. 46 where an EPO is in place and it is not desirable to imply a restriction which prohibits a constable from removing a child under s. 46 where the constable has reasonable cause to believe that the child would otherwise be likely to suffer significant harm.

  • The s. 46 power to remove a child can therefore be exercised even where an EPO is in force in respect of the child.

  • Where a police officer knows that an EPO is in force, he/she should not exercise the power of removing a child under s. 46, unless there are compelling reasons to do so.

  • The statutory scheme accords primacy to the EPO procedure under s. 44 because removal under that section is sanctioned by the court and involves a more elaborate, sophisticated and complete process of removal than under s. 46.

  • Consequently, the removal of children should usually be effected pursuant to an EPO, and s. 46 should only be invoked where it is not reasonably practicable to execute an EPO.

  • In deciding whether it is practicable to execute an EPO, the police should always have regard to the paramount need to protect children from significant harm.

  • Failure to follow the statutory procedure may amount to the police officer’s removal of the child under s. 46 being declared unlawful.

(Langley v Liverpool City Council and Chief Constable of Merseyside [2005] EWCA Civ 1173.)

1.13.4.1 Designated Officer

The reference at s. 46(3)(e) of the Act to a ‘designated officer’ is a reference to the appropriate officer designated for that police station for the purposes of this legislation by the relevant chief officer of police. This is a key role in ensuring the effective use of the statutory framework set up for the protection of children in these circumstances. The responsibility for ensuring that the case is inquired into by the designated officer, together with the other responsibilities under s. 46(3) and the responsibility for taking steps to inform people under s. 46(4), clearly rest with the police officer exercising the power under s. 46.

The designated officer must inquire fully and thoroughly into the case; he/she must also do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare (having regard in particular to the length of the period during which the child will be so protected) (s. 46(9)(b)).

Where a child has been taken into police protection, the designated officer shall allow:

  • the child’s parents

  • any person who is not a parent of the child but who has parental responsibility for the child

  • any person with whom the child was living immediately before being taken into police protection

  • any person in whose favour a contact order is in force with respect to the child

  • any person who is allowed to have contact with the child by virtue of an order under s. 34 and

  • any person acting on behalf of any of those persons,

to have such contact (if any) with the child as, in the opinion of the designated officer, is both reasonable and in the child’s best interests (s. 46(10)).

The designated officer may apply for an ‘emergency protection order’ under s. 44 (s. 46(7)). Such an order allows the court to order the removal of the child to certain types of accommodation and to prevent the child’s removal from any other place (including a hospital) where he/she was being accommodated immediately before the making of the order (s. 44(4)). An emergency protection order gives the applicant ‘parental responsibility’ for the child while it is in force. It also allows the court to make certain directions in relation to contact with the child and a medical or psychiatric assessment. Section 44A allows the court to make an order excluding certain people from a dwelling house where the child lives and to attach a power of arrest accordingly.

While the designated officer can apply for an emergency protection order without the local authority’s knowledge or agreement (see s. 46(8)), there should be no reason why, given proper multi-agency co-operation and a well-planned child protection strategy, this situation would come about.

On completing the inquiry into the case, the designated officer must release the child from police protection unless he/she considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released (s. 46(5)).

While a child is in police protection, neither the officer concerned nor the designated officer will have parental responsibility for the child (s. 46(9)(a)).

When a local authority is informed that a child is in police protection, they have a duty to make ‘such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard’ the child (s. 47(1)(b)). A court may issue a warrant for a constable to assist a relevant person to enter premises in order to enforce an emergency protection order.

1.13.4.2 Contravention of Protection Order or Police Protection

Offence Acting in Contravention of Protection Order or Power Exercised under s. 46—Children Act 1989, s. 49

  • Triable summarily

  • Six months’ imprisonment

The Children Act 1989, s. 49 states:

  1. (1) A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he—

    1. (a) takes a child to whom this section applies away from the responsible person;

    2. (b) keeps such a child away from the responsible person; or

    3. (c) induces, assists or incites such a child to run away or stay away from the responsible person.

  2. (2) This section applies in relation to a child who is—

    1. (a) in care;

    2. (b) the subject of an emergency protection order; or

    3. (c) in police protection,

      and in this section ‘the responsible person’ means any person who for the time being has care of him by virtue of the care order, the emergency protection order, or section 46, as the case may be.

Keynote

Where a child is taken in contravention of s. 49, the court may issue a ‘recovery order’ under s. 50. The order, which is also available where a child is missing or has run away, requires certain people to produce the child to an authorised person (which includes a constable (s. 50(7)(b)) or to give certain information about the child’s whereabouts to a constable or officer of the court (s. 50(3)). It can authorise a constable to enter any premises and search for the child.

Under s. 102 of the 1989 Act a court may issue a warrant to enter premises in connection with certain provisions of the Act which regulate children’s homes, foster homes, child-minding premises and nursing homes for children. Section 102 allows for constables to assist any person in the exercise of their powers under those provisions. It makes allowances for a constable to be accompanied by a medical practitioner, nurse or health visitor (s. 102(3)).

1.13.4.3 Disclosure of Information Regarding Child

Where a child is reported missing problems can arise once the child is discovered to be safe and well but one of the parents wants the police to disclose the whereabouts of the child. This situation arose in S v S (Chief Constable of West Yorkshire Police Intervening) [1998] 1 WLR 1716 and the Court of Appeal provided some clarification of the issues. In that case the mother left home with her three-year-old child after a marriage breakdown. The father reported the child’s absence to the police who found the child and her mother in a refuge. At the request of the mother, the police advised the father that both she and the child were safe but refused to disclose their whereabouts. The father applied ‘without notice’ (i.e. without telling the police) to the county court which then made an order under s. 33 of the Family Law Act 1986, requiring the police to disclose the information. The chief constable was granted leave to intervene and, following another order from the court to disclose the child’s whereabouts, the chief constable appealed. The Court of Appeal held that it was only in exceptional circumstances that the police should be asked to divulge the whereabouts of a child under a s. 33 order. Their primary role in such cases should continue to be finding missing children and ensuring their safety.

However, the court went on to say that, in such cases:

  • The police are not in a position to give ‘categoric assurances’ of confidentiality to those who provide information as to the whereabouts of a child. The most they could say is that, other than by removing the child, it would be most unlikely that they would have to disclose the information concerning the child’s whereabouts.

  • An order under s. 33 provides for the information to be disclosed to the court, not to the other party or his/her solicitor.

  • An order under s. 33 should not normally be made in respect of the police without their being present (ex parte).

Note that the provision of information by police officers in relation to civil proceedings involving children is governed by regulations; specific advice should therefore be sought before disclosing any such information.