1.2 Legal Framework

RELEVANT GUIDANCE

RELATED CHAPTER

Introduction
Section 23 - Protecting Children in Danger or in Need
Threshold Criteria (Care Proceedings)
Parental Responsibility
Section 24 - Duties in relation to Looked After Children
Section 46 - Child Protection Enquiries
Section 27 - Secure Accommodation
Section 31 - Care and Supervision Orders
Section 38 - Duration of Care Orders
Section 41 - Assessment Orders
Section 42 - Emergency Protection Orders
Section 11 - Orders
Special Guardianship Orders

1. Introduction

Caption: Introduction

1.1	The Children and Young Persons Act 2001 provides the legal framework to safeguard and promote the welfare of children and young people on the Isle of Man.
1.2	The following sections outline the legal responsibilities and duties for staff.

2. Section 23 - Protecting Children in Danger or in Need

23. Functions of Department in Relation to Children in Danger or Children with Complex Needs (Child in Need under the Act)

The Department shall, in accordance with the following provisions of this Act, take such steps as appear to it to be appropriate to safeguard and promote the welfare of children who are suffering, or likely to suffer, Significant Harm;
The Department may provide, or arrange with voluntary organisations or other persons for the provision of, all or any of the services specified in subsection 1, for the purpose of:
1. Performing its duty under subsection 1; and
2. Safeguarding and promoting the welfare of children who are in need.
The services referred to in subsection 2, are:
1. Accommodation for children who require it in the circumstances specified in Section 25;
2. Day care;
3. Advice, guidance and counselling;
4. Occupational, social, cultural or recreational facilities;
5. Home help;
6. Assistance with travelling to and from home for the purpose of taking advantage of any service provided under subsection 2, or any similar service;
7. Publishing information about any service provided under subsection 2, or any similar service.
Any public authority other than the Department may, in the exercise of its statutory functions, co-operate with the Department in the provision by the Department of any of the services specified in subsection 3;
For the purposes of this Act a child is in need if:
1. He is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services under this Part; or
2. His health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
3. He is disabled.
For the purposes of this Act:
- "Development" means physical, intellectual, emotional, social and behavioural development;
- "Disabled" means blind, deaf, dumb, suffering from mental disorder of any kind, or substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed;
- "Harm" means ill-treatment or the impairment of health or development; and where the question of whether harm suffered by a child is significant turns on his health or development, his health or development shall be compared with that which could reasonably be expected of a similar child;
- "Health" means physical or mental health;
- "Ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.

Please note that the Equality Bill may have some effect on the definition of disability set out above.

3. Threshold Criteria (Care Proceedings)

3.1

The term Threshold Criteria is used in relation to Care Proceedings brought by the Department under Section 31(2) of the Children and Young Persons Act 2001 if there is concern that the child concerned is suffering or is likely to suffer Significant Harm attributable to the care being given to the child, or likely to be given if an Order were not made, not being what it would be reasonable to expect a parent to give, or the child being beyond parental control.

4. Parental Responsibility

4.1	Parental Responsibility (Section 2&3, CYPA 2001) means all the duties, powers, responsibilities and authority which a parent has by law in relation to a child. Parental Responsibility diminishes as the child acquires sufficient understanding to make his or her own decisions. See also Children and Young Persons (Amendment) Act 2013.
4.2	Legally, a birth mother automatically has PR.
4.3	A birth father will have PR if he is married to the mother (either at the time of the child’s birth or after) or as of 1st November 2013 a father registered on a Manx birth certificate will have PR. A father will also have PR if he is registered on the UK birth certificate; since the 4th May 2006 for births registered in Scotland and 1st December 2003 for births registered in England and Wales.
4.4	A father will also have PR if he has been granted a parental responsibility order from the court or he has entered into a parental responsibility agreement with the child’s mother.
4.5	Parental Responsibility can be acquired by any person through a Court Order, for example a Residence Order. As well as an unmarried father, a step parent or a parent's civil partner can apply for a Parental Responsibility Order.
4.6	The Department acquires Parental Responsibility through an Emergency Protection Order, an Interim Care Order and a Care Order. In these circumstances the Department shares Parental Responsibility with the parents and those with Parental Responsibility. Parents do not lose their Parental Responsibility unless an Adoption Order is made.

5. Section 24 - Duties in relation to Looked After Children

Duties of Department where it Looks After Children

For the purposes of this Act the Department is looking after a child where:
1. He is in the care of the Department; or
2. The Department provides accommodation (other than accommodation in a health service hospital) for him under this Act or any other enactment for a continuous period of more than 24 hours.
Without prejudice to its duty to provide accommodation under section 25, 1, where the Department is looking after a child it shall:
1. Safeguard and promote his welfare;
2. Maintain him (apart from providing accommodation for him);
3. Advise, assist and befriend him with a view to promoting his welfare after he ceases to be looked after by the Department; and
4. Make use of such services available for children cared for by their own parents as appear to the Department reasonable in his case.
Where the Department is looking after or proposing to look after a child, it shall:
1. Before making any decision with respect to him, so far as reasonably practicable, ascertain the wishes and feelings regarding the matter to be decided of:
  1. The child;
  2. His parents;
  3. Any other individual who has parental responsibility for him; and
  4. Any other person whose wishes and feelings the Department considers to be relevant; and b. in making any such decision, give due consideration;
  5. (Having regard to his age and understanding) to such wishes and feelings of his as it has been able to ascertain;
  6. To such wishes and feelings of any person mentioned in paragraph a. ii, iii or iv. as it has been able to ascertain;
  7. To the child's religious persuasion.
The Department may disregard any requirement of subsection 2, or 3, with respect to any child whom it is looking after, if it is satisfied that it is necessary to do so in order to protect the public from serious injury;
Schedule 2 makes further provision for children looked after by the Department;
Schedule 3 makes provision in connection with contributions towards the maintenance of children who are being looked after by the Department.

6. Section 46 - Child Protection Enquiries

Section 46 of the Children and Young Persons Act 2001 states:

Where the Department:
1. Is informed that a child is in police protection; or
2. Has reasonable cause to believe that a child is suffering or likely to suffer, significant harm.
The Department shall make or cause to be made such enquiries as it considers necessary to enable it to decide whether it should take any action to safeguard or promote the welfare of the child.
Where the Department has obtained an Emergency Protection Order with respect to a child, it shall make or cause to be made such enquiries as it considers necessary to enable it to decide what action it should take to safeguard or promote the welfare of the child;
The enquiries shall in particular be directed towards establishing:
1. Whether the Department should make any application to the court, or exercise any of its other powers under this Act, with respect to the child;
2. Whether, in the case of a child with respect to whom an Emergency Protection Order has been made, or who is not in accommodation provided by or on behalf of the Department, it would be in the best interests of the child (while an Emergency Protection Order remains in force) for him to be in such accommodation; and
3. Whether, in the case of a child who has been taken into police protection, it would be in his best interests to ask for an application to be made under Section 45, 6.
Where there are enquiries are being made under subsection 1, with respect to a child, the Department shall (with a view to enable it to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable:
1. To obtain access to him; or
2. To ensure that access to him is obtained, on its behalf, be a person authorised by it for the purpose.
Unless the Department is satisfied that it already has sufficient information with respect to him.

7. Section 27 - Secure Accommodation

(For more information please see Placements in Secure Accommodation Procedure and the Secure Accommodation (Criteria) Reviews Procedure.)

Secure Accommodation

Subject to the provisions of section 27 and section 76, 4, a child who is being looked after by the Department may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears:
1. That:
  1. He has a history of absconding and is likely to abscond from any other description of accommodation; and
  2. If he absconds, he will suffer, or be likely to suffer, significant harm.
  or
2. That if he is kept in any other kind of accommodation he is likely to injure himself or other persons.

A child may not be kept in secure accommodation after the end of such period as may be prescribed, unless a juvenile court has by an order made on the application of the Department authorised him to be kept there;
Subject to subsection 5, on an application under subsection 2, the court:
1. Shall make the order applied for if (and only if) it is satisfied that:
  1. The condition specified in subsection 1.a or b; and
  2. Such further conditions as may be prescribed, are fulfilled;
  and
2. Shall in the order specify the maximum period (which shall not exceed such period as may be prescribed) for which he may be kept in secure accommodation without a further order under subsection 2.
If the court adjourns the hearing of an application under subsection 2, it may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation.

The court shall not make an order under subsection 2, unless:
1. It is satisfied that the Department has taken all such steps as are reasonable and practicable to notify any person who has parental responsibility for the child of the Department's intention to make the application; and
2. Where the child is not legally represented in that court, he has been informed of his right to apply for legal aid and given an opportunity to do so, and has refused or failed to apply.
This section:
- Does not apply to a child remanded under section 76 to accommodation provided by the Department;
- Does not apply to any prescribed description of children; and
- Has effect in relation to children of a prescribed description subject to such modifications as may be prescribed.

The making of an order under this section does not prejudice any power of any court to make any other order or to give directions relating to the child to whom the order relates.

8. Section 31 - Care and Supervision Orders

Care and Supervision Orders

On the application of the Department with respect to a child a court may make an order:
1. Placing the child in the care of the Department (a "care order"); or
2. Putting him under the supervision of the Department or, with the consent of the Department, of a probation officer (a "supervision order").
A court may not make a care order or a supervision order unless it is satisfied:
1. That the child is suffering, or likely to suffer, significant harm; and
2. That the harm is or will be attributable to:
  1. The care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
  2. The child's being beyond parental control.

9. Section 38 - Duration of Care Orders

Duration of Care Orders

Unless previously revoked, and subject to subsections 2, and 3, a care order (other than an interim order) continues in force until the child concerned reaches the age of 18.
A care order with respect to a child ceases to have effect:
1. If he is adopted;
2. On the making of any of the following orders with respect to him:
  1. A residence order;
  2. An order under section 6. (Appointment of guardian by High Court);
  3. An order under section 43 of the Adoption Act 1984. (Adoption of children abroad).
Where a child who is in the care of the Department is lawfully taken to live in any part of the United Kingdom or any of the Channel Islands, the care order in question shall cease to have effect if the conditions prescribed in an order made by the Council of Ministers are satisfied.

10. Section 41 - Assessment Orders

Assessment Orders

On the application of the Department for an order under this section (an "assessment order") with respect to a child, a court of summary jurisdiction may make the order if (and only if) it is satisfied that:
1. The Department has reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm;
2. An assessment of the state of the child's health or development, or of the way in which he has been treated, is required to enable the Department to determine whether or not the child is suffering, or likely to suffer, significant harm; and
3. It is unlikely that such an assessment will be made, or be satisfactory, in the absence of an assessment order.
The court may treat an application under this section as an application for an Emergency Protection Order;
The court may not make an assessment order if is it satisfied:
1. That there are grounds for making an emergency protection order with respect to the child; and
2. That it ought to make such an order rather than an assessment order.
An assessment order shall specify the date by which the assessment is to begin, and shall have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order;
Where an assessment order is in force with respect to a child, any person who is in a position to produce the child shall:
1. Produce him to such person as may be named in the order, and b. comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.
An assessment order authorises any person carrying out the assessment, or any part of it, to do so in accordance with the terms of the order; but if the child is of sufficient understanding to make an informed decision, he may refuse to submit to a medical or psychiatric examination or other assessment;
The child may only be kept away from home:
1. In accordance with directions specified in the order;
2. If it is necessary for the purposes of the assessment; and
3. For such period or periods as may be specified in the order; and where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.

11. Section 42 - Emergency Protection Orders

Emergency Protection Orders

On the application of the Department for an order under this section (an "emergency protection order") with respect to a child, a court of summary jurisdiction may make the order if (and only if) it is satisfied that:
1. There is reasonable cause to believe that the child will suffer, or be likely to suffer, significant harm if:
  1. He is not removed to accommodation provided by or on behalf of the Department; or
  2. He does not remain in the place in which he is then being accommodated;
  or
1. Enquiries are being made with respect to the child under section 46, 1.b, and:
  1. Such enquiries are being frustrated by access to the child being unreasonably refused to a person authorised by the Department to seek access in connection with the enquiries; and
  2. The Department has reasonable cause to believe that such access is required as a matter of urgency.
Where an emergency protection order is in force with respect to a child, any person who is in a position to produce the child shall comply with any request to produce him to the Department;
An emergency protection order authorises:
1. The removal of the child at any time to accommodation provided by or on behalf of the Department and his detention there; and
2. The prevention of the child's removal from any hospital or other place in which he was being accommodated immediately before the making of the order.
But the Department shall only exercise the power given by paragraph a. or b. in order to safeguard the welfare of the child.

12. Section 11 - Orders

Caption: Section 11 Orders

12.1	This is a generic term and refers to Orders made under Section 11 of the Children and Young Persons Act 2001, namely, a Residence Order, (1) (a), Contact Order, (1) (b) Specific Issues Order, (1) (d) and Prohibited Steps Order, (1) (c).
12.2	Residence Order
	12.2.1	A Residence Order is a Court Order made under Section 11 of Children and Young Persons Act 2001, which gives Parental Responsibility to the person in whose favour it is made. Residence Orders made on or after 30 December 2005 can last until the child is 18 unless discharged earlier by the Court or by the making of a Care Order. Prior to that, Residence Orders usually lasted until the child was 16 unless there were exceptional circumstances.
	12.2.2	A Residence Order in favour of a relative or Foster Career with whom a child is placed may be an appropriate outcome of a Permanence Plan for a Looked After Child.

13. Special Guardianship Orders

The Children & Young Persons (Amendment) Act 2011 provides the legal framework for Special Guardianship. This Amendment Act inserts new sections 17 A - F into the Children & Young Persons Act 2001. The new sections cover:

Who may apply for a Special Guardianship Order;
The circumstances in which a Special Guardianship Order may be made;
The nature and effect of Special Guardianship Orders;
Support services for those affected by Special Guardianship.

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