This page provides information on the powers of the local authority to take action to protect a child who is suffering harm or at risk of suffering harm. This page focuses on the Care Orders and their implications.
What is a care order?
Where a child is made subject to a Care Order, the Local Authority is given Parental Responsibility and will share it with current Parental Responsibility holders, for example, the child’s parents. However, the Local Authority can exercise their Parental Responsibility above that of current Parental Responsibility holders insofar as necessary to safeguard the welfare of a child.
What is an interim care order?
The court can consider whether to make an Interim Care Order which places the child temporarily under the care or supervision of the local authority whilst care proceedings are ongoing. An Interim Care Order will be made where the court has reasonable grounds for believing the threshold criteria have been met (see below for the threshold criteria). An Interim Care Order can last up to 8 weeks on the first occasion and can be renewed for periods of up to 28 days. There is no limit to the number of interim care orders that can be made. The Local Authority acquire Parental Responsibility for the child when there is an Interim Care Order is in place.
Who can apply for a care order?
Only a local authority or ‘authorised person’ can apply for a Care Order. At present, the only authorised person is the NSPCC. The court cannot initiate care proceedings. If the court believes care proceedings are appropriate in a particular case it can direct that the local authority conduct a Section 37 investigation which may lead to the local authority initiating care proceedings.
When will a care order be made?
For a Care Order to be made, the court must be satisfied that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to:
- 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/her; or
- the child being beyond parental control.
These are known as the ‘threshold criteria’. The duty is on the local authority to show that the ‘threshold criteria’ has been met. A Care Order cannot be made once a child has reached the age of 17.
What are the duties of the Local Authority relating to a child under a care order?
When a care order has been made, the Local Authority must:
- receive the child into its care for the duration of the Care Order (s 33(1) Children Act 1989);
- provide accommodation and maintenance for the child (s 22G);
- safeguard and promote the child’s welfare (s 22(3));
- before making any decision in respect of the child, the LA must ascertain the wishes and feelings of the child, those with Parental Responsibility, parents and anybody else relevant to the child, and give consideration to those wishes and feelings (s 22(4));
- keep under review whether to apply to discharge the Care Order;
- appoint an independent visitor for the child in some circumstances;
- make arrangements for the care plan to be reviewed by an Independent Reviewing Officer;
- advise, befriend and assist the child with a view to promoting their welfare once they are no longer looked after.
Please see our page on ‘Local Authorities’ duties in relation to Looked After Children‘ for further information on this area.
What are other effects of a care order?
The following effects of a care order are set out in Section 33 of the Children Act 1989:
- The local authority designated to look after the child shall have parental responsibility for the child
- The local authority designated to look after the child shall not cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made.
- No person may:
- cause the child to be known by a new surname or remove him from the United Kingdom, for a period exceeding 28 days, without either the written consent of every person who has parental responsibility for the child or the leave of the court.
Who will the child live with under a care order?
Where a Care Order has been made, it is the decision of the Local Authority where the child will live. The child can be placed either with their parents, relatives, in a children’s home or with foster parents. In certain circumstances, the child can be placed with their parents while still being subject to a care order. The local authority can, at any time, place the child in alternative accommodation if concerns arise. This can happen without the parents receiving prior notice if the situation is urgent.
Who can have contact with a child under a care order?
Under s 34 Children Act 1989, there is a duty on the designated local authority to provide the parent(s) and certain other persons, including those who have Parental Responsibility for the child, with a reasonable amount of contact.
Please see our page on ‘Contact with a child in care‘ for further information on this area.
Can a care order be discharged?
An application to discharge a Care Order can be made by the child, the parent, the local authority or any person with Parental Responsibility. The applicant must demonstrate that there is a significant change in circumstances since the care order was granted. If you are considering applying to discharge an order, we strongly advise that you seek independent legal advice.
The relevant court form required to make the application is C110a.
Can I get legal aid?
If you receive a “letter before proceedings” or “letter of issue” you will be eligible for non-means, non-merits tested legal aid.
- Letter before proceedings: This letter is sent to the parents where Children’s Services decide that further time should be given. The letter is intended to warn parents that if the care given to the child does not improve then Children’s Services will initiate care proceedings.
- Letter of issue: This letter is sent to the parents when Children’s Services decide it is not in the child’s best interests for the current circumstances to continue and the child should instead be removed and placed in care. The letter explains that Children’s Services intend to start care proceedings.
We would advise that you seek legal advice and representation in such circumstances. The Local Authority should provide you with a list of local Child Law solicitors, but can also refer to the following to find solicitors locally: