Appendix 1 – Statutory framework

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UPDATE:

The Department for Education has published the 2013 edition of the Working Together guidance. You can access our web-enabled version via the 'contents' tab at the top of this website.

Click here to continue reading the archived 2010 guidance.

1.	All organisations that work with children and families share a commitment to safeguard and promote their welfare, and for many agencies that is underpinned by a statutory duty or duties.
2.	This appendix briefly explains the legislation most relevant to work to safeguard and promote the welfare of children.
Children Act 2004
3.	Section 10 requires each local authority to make arrangements to promote co-operation between the authority, each of the authority’s relevant partners (see Table A) and such other persons or bodies working with children in the local authority’s area as the authority considers appropriate. The arrangements are to be made with a view to improving the wellbeing of children in the authority’s area – which includes protection from harm or neglect alongside other outcomes. This section of the Children Act 2004 is the legislative basis for children’s trust arrangements.
4.	Section 11 requires a range of organisations (see Table A) to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged with regard to the need to safeguard and promote the welfare of children.
5.	Section 12 enables the Secretary of State to require local authorities to establish and operate databases relating to the section 10 or section 11 duties (above) or the section 175 duty (below), or to establish and operate databases nationally. This section limits the information that may be included in those databases, and sets out which organisations can be required to, and which can be enabled to, disclose information to be included in the databases. This section is the statutory basis for ContactPoint.
6.	Section 12A was inserted by section 194 of the Apprenticeships, Skills Children and Learning Act 2009 and requires the co-operation arrangements made under section 10 to include the establishment of a Children’s Trust Board.
7.	Section 13 requires each children’s services authority to establish a Local Safeguarding Children Board (LSCB). It also requires a range of organisations (see the list in column 5 of Table A to take part in LSCBs. Sections 13–16 set out the framework for LSCBs, and the LSCB Regulations set out the requirements in more detail, in particular on LSCB functions.
Click here to view Table A: Bodies covered by key duties (in addition to local authorities) (This will open in a new window)
Education Act 2002
8.	Section 175 puts a duty on local education authorities, maintained (state) schools and further education institutions, including sixth-form colleges, to exercise their functions with a view to safeguarding and promoting the welfare of children– children who are pupils, and students under 18 years of age in the case of schools and colleges.
9.	The same duty is put on independent schools, including academies, by Regulations made under section 157 of that Act.
Children Act 1989
10.	The Children Act 1989 places a duty on local authorities to promote and safeguard the welfare of children in need in their area.
	Section 17(1) of the Children Act 1989 states that: It shall be the general duty of every local authority: to safeguard and promote the welfare of children within their area 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. Section 17(10) states that a child shall be taken to be in need if: 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 by a local authority under this Part; his heath or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or he is disabled. (Children Act 1989, section 17)

11.	The primary focus of legislation about children in need is on how well they are progressing and whether their development will be impaired without the provision of services.
12.	It also places a specific duty on other local authority services and health bodies to co-operate in the interests of children in need in section 27. Section 322 of the Education Act 1996 places a duty on social services to assist the local education authority where any child has special educational needs.
	Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority, specifying the action in question. An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions. The authorities are: any local authority; any local education authority; any local housing authority; any health authority, special health authority, Primary Care Trust, National Health Service Trust or NHS Foundation Trust; and any person authorised by the Secretary of State for the purpose of this section. (Children Act 1989, section 27)

13.	Under section 47 of the Children Act 1989, the same agencies are placed under a similar duty to assist local authorities in carrying out enquiries into whether or not a child is at risk of significant harm.
14.	Section 47 also sets out duties for the local authority itself, around making enquiries in certain circumstances to decide whether they should take any action to safeguard or promote the welfare of a child.
	Section 47(1) of the Children Act 1989 states that: Where a local authority: are informed that a child who lives, or is found, in their area (i) is the subject of an emergency protection order, or (ii) is in police protection, or (iii) has contravened a ban imposed by a curfew notice imposed within the meaning of Chapter I of Part I of the Crime and Disorder Act 1998; or have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm: The authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. In the case of a child falling within paragraph (a) (iii) above, the enquiries shall be commenced as soon as practicable and, in any event, within 48 hours of the authority receiving the information. (Children Act 1989, section 47)

15.	Under section 17 of the Children Act 1989, local authorities carry lead responsibility for establishing whether a child is in need and for ensuring that services are provided to that child as appropriate. This does not necessarily require local authorities themselves to be the provider of such services.
16.	Section 17(5) of the Children Act 1989 enables the local authority to make arrangements with others to provide services on their behalf.
	Every local authority: shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23, 23B to 23D, 24A or 24B; and may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service. (Children Act 1989, section 17(5))

17.	Section 53 of the Children Act 2004 amends both section 17 and section 47 of the Children Act 1989, to require in each case that before determining what services to provide or what action to take, 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 or the action to be taken; and give due consideration (with regard to the child’s age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
Emergency protection powers
18.	There is a range of powers available to local authorities and others such as the NSPCC and the police to take emergency action to safeguard children.
	Emergency protection orders The court may make an emergency protection order under section 44 of the Children Act 1989, if it is satisfied that there is reasonable cause to believe that a child is likely to suffer significant harm if: s/he is not removed to different accommodation; or s/he does not remain in the place in which s/he is then being accommodated. An emergency protection order may also be made if enquiries (for example, made under section 47) are being frustrated by access to the child being unreasonably refused to a person authorised to seek access, and the applicant has reasonable cause to believe that access is needed as a matter of urgency. An emergency protection order gives authority to remove a child, and places the child under the protection of the applicant. Exclusion requirement The court may include an exclusion requirement in an interim care order or emergency protection order (sections 38A and 44A of the Children Act 1989). This allows a perpetrator to be removed from the home instead of having to remove the child. The court must be satisfied that: there is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, or that enquires will cease to be frustrated; and another person living in the home is able and willing to give the child the care that it would be reasonable to expect a parent to give, and consents to the exclusion requirement. Police protection powers Under section 46 of the Children Act 1989, where a police officer has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, s/he may: remove the child to suitable accommodation and keep him or her there; or take reasonable steps to ensure that the child’s removal from any hospital, or other place in which the child is then being accommodated is prevented. No child may be kept in police protection for more than 72 hours.
Homelessness Act 2002
19.	Under section 12 (which inserts section 213A of the Housing Act 1996), housing authorities are required to refer to adult social care services homeless persons with dependent children who are ineligible for homelessness assistance, or are intentionally homeless, as long as the person consents. If homelessness persists, any child in the family could be in need. In such cases, if social services decide the child’s needs would be best met by helping the family to obtain accommodation, they can ask the housing authority for reasonable advice and assistance in this, and the housing authority must give reasonable advice and assistance.

Appendix 1 – Statutory framework

UPDATE:

Children Act 2004

Click here to view Table A: Bodies covered by key duties (in addition to local authorities)

Education Act 2002

Children Act 1989

Emergency protection powers

Homelessness Act 2002

Click here to view
Table A: Bodies covered by key duties (in addition to local authorities)