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1.3 Duties and Powers


Caption: contents list
1. Introduction
2. General Duties and Powers to Provide Services
3. Support to Children and Families in Need
4. Duty to Safeguard Children
  4.1 Duty to make Enquiries into Suspected Abuse
  4.2 Duty to Provide Accommodation to Looked After Children
5. Secure Accommodation

1. Introduction

Caption: Introduction

The Children and Young Persons Act 2001 defines a number of tasks and issues with which the Department must be concerned. These are divided into:

  • Duties - the things the Department must do;
  • Powers - the things the Department may wish to do.
1.2 Below is a list of duties and powers required of the Department by the Act. It must be stressed that the Act lays powers upon Government Departments as a whole, not just the Department of Health and Social Care. The principle of co-operation and co-ordination encourages all agencies and departments to work together in the interests of children and their families.

2. General Duties and Powers to Provide Services


The Department has general duties and powers:

  • To safeguard and promote the welfare of children within the Island who are in need; and
  • So far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs.

3. Support to Children and Families in Need


The Department has a duty under section 23 in the identification of Children in Need and Provision of Information:

  • Duty to take reasonable steps to identify Children in Need, power to:
    • Publish information about services provided by the Department;
    • If considered appropriate, about services provided by others;
    • Take steps to ensure that those who might benefit from these services receive the relevant information.

The Department has a duty to provide services for children living with their families.

  • Duty to make provision as considered appropriate for the following services to be available for Children in Need living with their families:
    • Advice, guidance and counselling;
    • Occupational, social, cultural and recreational facilities;
    • Home care;
    • Facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under the Act or any similar service.

4. Duty to Safeguard Children

4.1 Duty to make Enquiries into Suspected Abuse

Caption: Duty to Safeguard Children

The Department has a duty to make enquiries or investigate in the following circumstances:

  • Section 46: Where the Department has reasonable cause to suspect that a child who lives or is found in the Island is suffering or is likely to suffer Significant Harm - (see NARRATES (including NARRATES S46) Procedure);
  • Section 42: Where the Department has obtained an Emergency Protection Order in respect of a child;
  • Section 45(6): Where the child is in Police Protection, the Department has a duty to establish whether the designated officer must be asked to apply for an EPO;
  • Section 46(5): If the Department decides that there are matters relating to the child’s education which need investigation they have a duty to consult the Department of Education;
  • Section 45(7): If, on conclusion of enquiries, the Department decides not to apply for an order, they have a duty to consider whether to review the case - if they decide in favour of a review, they have a duty to fix a date for the review;
  • Section 29: Where a court in family proceedings directs the Department to investigate a child’s circumstances.

The Department has a duty to take reasonable steps through the provision of services to prevent children suffering ill-treatment or Neglect. Where the Department believes that a child who is at any time within their area is likely to suffer harm but lives, or proposes to live, in another Department, power to inform that Department:

  • Duty to apply to the Court for a Care Order to be made in Care Proceedings brought under section 31 of the Children and Young Persons Act 2001 if the care proceedings Threshold Criteria are met;
  • The Order grants Parental Responsibility for the child to the Department, to be shared with the parents. A Care Order lasts until the child is 18 unless discharged earlier. An Adoption Order automatically discharges the Care Order;
  • All children who are the subject of a Care Order come within the definition of Looked After and have to have a Care Plan. When making a Care Order, the Court must be satisfied that the Care Plan is suitable.

Provision to reduce the need for Care Proceedings etc.

  • Duty to take responsible steps designed the reduce the need to bring:
    • Proceedings for care or supervision orders with respect to children within their area;
    • Criminal proceedings against such children;
    • Any family or other proceedings with respect to such children which might lead to them being placed in the Department’s care.

4.2 Duty to Provide Accommodation to Looked After Children

  • The Department has a duty under Section 25 to provide accommodation for a child in the following circumstances:
    1. Where he is in the care of the department;
    2. Where he is in need because:
      1. No person has parental responsibility for him; or
      2. He is lost or has been abandoned;
      3. A person who has been caring for him is prevented from providing him with suitable accommodation or care.
    3. Where:
      1. He is removed or kept away from home under Part 5; or
      2. The Department is requested to receive him under section 45 or under section 41(6) of the Police Powers and Procedures Act 1984; or
      3. He is remanded under section 76 to accommodation provided by the Department;
      4. He is the subject of a provision order imposing a residence requirement under paragraph 5 of Schedule 9.
  • The Department has power to provide accommodation for any child if it considers that to do so would safeguard or promote his/her welfare (subject to the agreement of those with Parental Responsibility or the agreement of the young person if S/he has reached the age of 16). Where there is no agreement those with Parental Responsibility must be willing and able to provide accommodation for him/her:
    • Before providing accommodation the duty on the Department, so far as is reasonably practicable and consistent with the child’s welfare, is to:
      • Ascertain the child's wishes regarding the provision of accommodation;
      • Having regard to the child's age and understanding to give due regard to his / her wishes.
  • Principle Duties to Looked After Children:
    • Safeguard and promote welfare and provide services;
    • Ascertain wishes of child etc. before making any decision;
    • Give due regard to wishes of child etc. and child’s religion and race;
    • Consult parents, anyone else with Parental Responsibility and any other significant person the Department considers relevant;
    • Contact:
      • Duty to promote contact between child and parents, person with Parental Responsibility, relatives, friends or other persons connected.
    • Reviews:
  • Other duties:
    • Representation and Complaints:
      • Gives a duty to establish a procedure for considering any representations (including any complaints). The Department shall set out in writing, and make available to the public, its arrangements for this procedure. See Complaints Policy and Procedure.
    • Contributions and Maintenance:
      • Duty to consider whether to recover cost of the child’s maintenance from parent or, if child aged 16 or over, from child, but only if reasonable to do so.
    • Death of Child - Schedule 2(7):
      • If reasonably practicable, duty to notify parent, person with Parental Responsibility. May arrange for burial/cremation. May pay expenses to mourners to attend. It may recover costs in appropriate cases;
      • It should be noted that under the Minimum Standards, Children Homes and the registered providers have responsibilities under Regulations 26 and 55 to provide information to the Department in respect of a child death;
      • Registered Provider, who has a duty to forward them to the Department.

5. Secure Accommodation

5.1 The Preventative Duty

  • Department must take reasonable steps to avoid the need for children within the Island to be placed in secure accommodation. Section 27 does not actually state that Secure accommodation must always be a last resort but it is implied; in the sense that all else must first have been comprehensively considered and rejected – never because no other placement was available at the relevant time, because of inadequacies of staffing, because the child is simply being a nuisance or runs away from his/her accommodation and is not likely to suffer Significant Harm in doing so, and never as a form of punishment (unless it is for remand or committal reasons).

5.2 Restrictions on Use - Minimum Age

  • In law, there is no minimum age for a child to enter secure accommodation. A child under the age of 13 years however, must not be placed in secure accommodation without the prior approval of the Minister of the Department of Health and Social Care via the Director of Children and Families. Where approval is granted the Minister may impose such terms and conditions as s/he sees fit.

5.3 The Criteria for Use

  • The general criteria which have to be satisfied (under section 27 of the Children and Young Persons Act 2001) before a child can be placed in secure accommodation fall into three categories:
    • The child persistently absconds and in doing so is at risk;
    • The child is a risk to themselves or others;
    • That if he is kept in any other kind of accommodation he is likely to injure himself or other persons;
    • See also Placements in Secure Accommodation Procedure.