Contents Page
Page number
Introduction………………………………………………………………………………………………..3
Question 1…………………………………………………………………………………………………3
Question 2…………………………………………………………………………………………………5
Question 3………………………………………………………………………………………………… 6
Question 4………………………………………………………………………………………………… 8
Question 5………………………………………………………………………………………………… 9
Question 6………………………………………………………………………………………………… 10
Question 7………………………………………………………………………………………………… 11
Question 8………………………………………………………………………………………………… 12
Question 9………………………………………………………………………………………………… 13
Conclusion………………………………………………………………………………………………… 15
Reference…………………………………………………………………………………………………. 16
Primary/Secondary Legislation………………………………………………………………………17
Case Law………………………………………………………………………………………………21
Genogram………………………………………………………………………………………………… 22
Social workers as we know them today were created by the Local Authority Act (Social Services) Act 1970, which social workers have responsibilities towards, and defines how these responsibilities shall be exercised. It further states that whatever the social care departments do is supervised by the Secretary of State (Brayne & Carr 2008).
The law provides the framework in which social work knowledge is applied. It does not provide answers to all circumstances, and can be contradictory within itself or when taking other forms of methods into account (Brammer, 2007).
Every aspect of the law is subject to the provisions of the Human Rights Act 1998 (HRA1998), which came into force in 2000 and is contained in the European Convention of Human Rights and fundamental freedom 1950 (Davis 2009). It aims to ensure that all elements of our law are compatible with human rights
Within this assignment key legislations will be explored to ascertain what the law stipulates are the local authority’s roles and responsibilities in the following scenarios. The law outlines various duties and powers, duties being what must be done and powers being where discretion may be used. The combination of the two provides a format for decision-making (Clements, 2004).
Natalie phones the Community Mental Health Team (where Sharon is known) to say that she found her mother at 2 a.m. in the High Street chanting and wearing just her underwear.
- You are the duty social worker at the CMHT what are your powers and duties to intervene?
Sharon is known to have schizophrenia, (Mental Health Codes of Practice 1983 (MHCOP1983) 3.3 recognises Schizophrenia as a mental disorder), and Sharon would have been provided with prescription medication. It appears from the information provided by Natalie that Sharon may have had a relapse. The National Service Framework for Mental Health 1999 (NSFMH1999) states ‘some side-effects of antipsychotic medication may lead people to discontinue their treatment. Relapse is five times as common with non-compliance of medication and this is likely to be a contributory factor. There is also evidence that delaying treatment with antipsychotic medication leads to poorer long term outcome for individuals with schizophrenic illness (NSFMH 1999). It is essential Sharon is seen and an assessment is completed as a matter of urgency.
Application for detention in this case has been decided to be made under the Mental Health Act 1983 (MHA1983) instead of relying on the Mental Capacity Act 2005 (MCA2005), because the patient meets the criteria in s.2 or s.3 of the MHA1983 (MHACOP 4.18), either has already refused it or is likely to do so (MHACOP 4.20), the patient’s lack of capacity to consent is fluctuating or temporary and the patient is not expected to consent when they regain capacity. This may be particularly relevant to patients having acute psychotic, manic or depressive episodes (MHACOP 4.21).
When undertaking an assessment the Approved Mental Health Practitioner (AMHP) (created by the MHA2007) considers the least restrictive alternatives; such as an informal admission to hospital for further assessments, adhering to s.131 of the MHA1983 and paragraph 2.7 of the MHCOP. Section 47 of the National Assistance Act 1948 (NAA1948) empowers the Local Authority (LA) to remove someone from their home in special circumstances. Sharon’s informal admittance into hospital would respect her autonomy, but may not address the needs of her welfare (Brayne & Carr, 2008). Informal admission does not permit retaining Sharon by enforcement. MHCOP 4.11 states compulsory admission should be considered where a patient’s current mental state, and reliable evidence of past experience, indicates a strong likelihood that they will have a change of mind about informal admission, either before or after they are admitted, with a resulting risk to their health or safety or to the safety of other people. Therefore, admitting Sharon into hospital under s.2 may be a more appropriate course of action (Brayne & Carr, 2008). MHCOP 1.7 states all decisions must be lawful and informed by good professional practice. Lawfulness includes compliance with the HRA1998.
Section 2 provides the hospital with a maximum of 28 days to detain Sharon and undertake assessments. If further time is required e.g. to provide treatment, the AMHP would apply for a s.3 (renewable every six months) (Brayne & Carr, 2008). Concerning anti-oppressive values, it is imperative to consider Sharon’s right to liberty under article 5 HRA1998. Article 5(2) and Aerts v Belgium [1998] 29 EHRR 50 demonstrate that if someone is detained for lengthy periods of time without receiving medical or therapeutic treatment it is considered a breach of the convention.
Before making an application, the AMHP must ‘interview Sharon in a ‘suitable manner’ and be satisfied that compulsory admission is the most appropriate way of providing care and medical treatment’ (Brayne & Carr 2008 p.518), also the AMHP must give consideration to the view of Sharon’s nearest appointed relative (NR) (s.13(2) MHA1983). Section 26 outlines who may be considered a NR, in this case, Dorothy. The AMHP must consult the nearest relative (MHA2007 s.11(4)) , consulting the wrong relative makes the ensuing admission and detention unlawful (re S-C (Mental patient) (Habeas Corpus)(1996)).
Once the AMHP has made a decision to apply for compulsory admission they must explain this to Sharon, the doctors, the NR, the key worker and the GP. This decision must be reached by the AMHP independently even if the decision is a different decision made by the doctors (St George’s Healthcare NHS Trust v S (1998)). The application for compulsory admission must be made by the AMHP and supported by two doctors (Brayne & Carr 2008)
As this would be an emergency admission, the AMHP would need to have seen Sharon not more than 24 hours before making the application and the admission would need to be carried out within 24 hours of the medical examination (MHA1983 s.6(2)(b)). Additionally, both doctors must sign the recommendations before the AMHP signs the application, otherwise the application is invalid (Brayne and Carr 2008 p.518).
Section 6 of MHA1983 provides the AMHP with the power of a constable to arrange for Sharon to be transported to hospital, MHCOP 11.8 highlights that the AMHP is responsible. Section 132(1) requires Sharon to be informed as to why she is being detained, advised of her rights to discharge and her right to apply to the Mental Health Tribunal. The AMHP is also required to inform Sharon’s family of the same unless this goes against her wishes (s.132).
Peay (2003) emphasises that whilst the MHA1983 and MHCOP provide a clear definition of the duties and powers of a person applying for an application it is evident that at times this can conflict with both personal and professional values.
In regards to the current circumstances the AMHP has a duty to inform the children’s team of the children’s current situation. The Children Act 1989 (CA1989) states that the welfare of children is everyone’s responsibility.
Sharon is admitted to the local psychiatric hospital. The AMHP contacts the local Social Services Children’s Department as the children are now at home on their own.
- You are the duty social worker who spoke to the AMHP. What are the Local Authority’s legal obligations to Natalie and Sam? What actions do you take and what are the legal grounds for those actions?
Upon receiving a referral, the LA is required to act in accordance with the CA1989 and guidance provided by the Department of Health (DOH). Section 17 of the CA1989, places a general duty on LA to safeguard and promote the welfare of the children in their area who are in need, and to promote the upbringing of such children by their families, the duty social worker would try to locate members of the family as the main carer for these children is unable to currently provide appropriate care. Section 17(10) states a child is in need if s/he is unlikely to achieve or maintain a reasonable standard of health or development or this is likely to be significantly impaired without the provision of services; or the child is disabled. The LA has 24 hours to make a decision in response to the referral (further intervention is required or the referral is closed).
Based on the information obtained an assessment under s.17 appears applicable. The SW has 7 working days to undertake an Initial Assessment (IA). The Framework for the Assessment of Children in Need and their Families 2000 provides clear guidance on how to undertake relevant assessment(s) including an IA and enquires under s.17 or s.47. Working Together to Safeguard Children 2006 outlines safety measurements. The SW is also required to take into account the five outcomes identified in Every Child Matters 2003. The IA identifies needs and the SW is required to physically see both Natalie and Sam. As both Natalie and Sam are viewed to be in need, a core assessment is required which commences on the seventh day of when the IA ends and must be completed in 35 working days. A factor to be considered is the potential result to Natalie and Sam’s well-being if needs outlined are not addressed. The core assessment facilitates how those needs can be met, which involves examining Natalie, Sam and relevant members of their family and, discussions with other agencies such as the GP and educational professionals are also compulsory (Brayne & Carr, 2008).
As both Natalie and Sam require a safe place to reside and no family members or family friends were located, and whilst their mother is admitted into hospital, both Natalie and Sam could be accommodated under s.17(6) CA1989 (amended by the Adoption and Children Act 2002 to include the extension of providing accommodation). However, a child provided with accommodation under s.17 CA1989 in not a Looked After Child (LAC), nevertheless the LA cannot get out of its duties to these children by stating that they are accommodated under s.17 (Davis 2009). Section 20(1)(c) CA1989 states every LA shall provide accommodation for children where the person who has been caring for him is being prevented from providing him with suitable accommodation or care, therefore Natalie and Sam can alternatively be accommodated under s.20.
Natalie and Sam are placed with short term foster carers. Their Great Aunt (60 years old and African) Rose, comes forward, after 3 weeks, as a potential kinship carer for Natalie. She does not want to care for Sam as she feels she is too old to care for a 7 year old. Sharon remains in hospital for 4 months and during that time decides that she can’t continue caring for the children.
- You are the allocated social worker for Natalie and Sam. How do you now proceed and what are your powers and duties?
If assuming Sharon has capacity to make decisions Sam can remain as a LAC under s.20 CA1989, and arrangement for a long term placement can be made in partnership with Sharon.
However, assuming Sharon does not have capacity to make decisions an Interim Care Order (ICO) can be applied for (s.38 CA1989). The courts must be satisfied with s.31(2)(b) CA1989 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.
Before an application is submitted to the court the Public Law Outline stipulates all LA’s are expected to insure all kinship options have been explored, and all relevant assessments completed (Brayne & Carr 2008 p276).
Relative to Rose coming forward as a potential kinship carer, Davis (2009) explains the term ‘kinship care’ is not a legal term and does not connote a particular status. Kinship care is an arrangement where a child who cannot be cared for by their parents goes to live with a relative or a family friend (The Children’s Legal Centre 2008). As this may be a long term arrangement the Fostering Service would complete an assessment. Essentially Natalie can be placed with Rose under a LA foster placement (Davis, 2009).
Section 11 of the Fostering Service Regulations 2002 (FSR2002) stipulates before making decisions affecting a child placed or to be placed with foster parents due consideration is given to (i) the child’s wishes and feelings in the light of his age and understanding; and (ii) his religious persuasion, racial origin and cultural and linguistic background. Rose is of back African origin and Natalie has been raised in a white British household therefore, further consideration will need to be given to Natalie’s cultural background. If it is decided due to this issue Natalie should not be placed with her grandmother this would be against CA1989 placing a duty on the LA to promote the upbringing of children by their families.
The fostering service would carry out an assessment of any person whom it considers may be suitable to become a foster parent (s.27 FSR2002). Section 27(2) FSR2002 informs the assessment should include information relating to the prospective foster parent and other members of his household and family, interviews of at least two persons nominated by the prospective foster parent to provide personal references for him, and consideration to whether the prospective foster parent is suitable to act as a foster parent and whether his household is suitable for any child in respect of whom approval may be given. The social worker completing the assessment must prepare a report and refer the report to the fostering panel (s.21(2)(e/f) FSR2002).
Under s.33 FSR2002 a responsible authority shall not place a child with a foster parent unless satisfied that it is the most suitable way of performing its duty under section 22(3) or 61(1)(a) and (b) of the CA1983 and a placement with the particular foster parent is the most suitable placement having regard to all the circumstances.
As Sharon has decided she can no longer care for her children, Rose may want to consider making the placement more secure by applying for a residence order, guardianship order or adoption order (Children’s Legal Centre 2008).
Two months later Natalie is successfully placed with her Great Aunt and Sam remains with his short term foster carer while plans are made for him.
- What are the local authority’s responsibilities towards Sam as a Looked After Child and Natalie who is placed with a kinship carer?
The LA share parental responsibility (PR) with Sharon having obtained an ICO. Section 22, s.23 and s.24(1) of the CA1989 stipulates the duties to children and young people looked after by the LA. Section 38 CA1989 states what provisions must be provided for children on an ICO. Section 23(1)(a) CA1989 places a duty on the LA to provide Sam with suitable accommodation. Three keys aspects of this are contact, accommodation and education (Brayne & Carr, 2008).
Sam should ideally be accommodated near his parents as defined by s.34 CA1989, which places a duty on LA to promote contact if applicable. If the LA is unable to place Sam locally then they have power to provide financial assistance to facilitate contact arrangements (Ryden, 2005). Contact arrangements must be documented within Sam’s care plan and reassessed at statutory periodic reviews, namely 28 days after accommodating, then after 3 months proceeding to every six months throughout his time in care (Brayne & Carr, 2008). Contact would not be facilitated and his parents would not be informed of his whereabouts if it is in the interest of the welfare of Sam complying with Schedule 2 paragraph 15 CA1989.
Section 22(5)(c) CA1989 places a duty for the LA to give due consideration to Sam’s “religious persuasion, racial origin and cultural and linguistic background”, again highlighting the importance of maintaining family links. Critically, whilst consideration must be given, it is a guiding principle and not a duty to place Sam within the same cultural family (Ball & McDonald, 2002).
Promoting the Health of Looked After Children 2002 and s.38(6) CA1989 states that LAC need to have regular medical examinations. Section 7 of the Local Authority Social Services Act 1970(b) (LASSA) placed a duty on the LA to promote the educational achievement of LAC this is reinforced by Care Matters Time for Change 2007. Section 28 of CA1983 placed a duty on the SW to consult with the Local Educational Authority (LEA) where Sam is accommodated to ensure suitable educational provisions are in place. It is a duty for the LEA to ensure all LAC are allocated a place in school within 14 days of becoming accommodated (Brammer, 2007).
Within the Care and Placement Plans, the SW identifies Sam’s educational needs. SW’s duty is to initiate a Personal Educational Plan (PEP) in partnership with educational professionals. A PEP must be initiated within 14 working days of Sam being accommodated and must be available for the first statutory review held (28 days after accommodating).
As Natalie is placed in kinship foster care the same responsibilities as those to Sam would apply to Natalie.
As a statutory duty and in good practice, both Sam’s and Natalie’s wishes and feelings should be considered however, their consent to accommodation is not required (Davis 2007)
You are the supervising social worker for Mr and Mrs Evans who are caring for Sam. You receive a telephone call from Natalie’s Great Aunt saying that when Sam visited them on Sunday, as arranged, he had bruises on both his upper arms and said that Mr Evans had shaken him.
- What actions do you and the Local Authority take and on what legal grounds?
Section 22(3)(a) of the CA1989, places a duty on LA to “safeguard and promote” the “welfare” of a LAC. Section 9.1 of the National Minimum Care Standards for Fostering Services (2002) issued under s.23(1) of the Care Standards Act 2000 (CSA2000) states the carer must uphold the welfare of the child. As the allegation involves a foster carer the procedure to investigate is outlined in the The Carers and Disabled Children Act 2000 (TCDCA2000), in conjunction with the London Child Protection Procedures 2003 (LCPP2003). The Commission for Social Care Inspectorate (CSCI) are required to be notified as they are responsible for regulating and inspecting registered carers.
Section 47 of the CA1989 places a duty on the LA to investigate allegations whereby a child has suffered or is at risk of suffering significant harm. The LCPP2003 states ‘whenever there is reasonable cause to suspect that a child is suffering or is likely to suffer significant harm, there should be a strategy meeting/discussion. The strategy meeting should include all relevant professionals in the meeting, which should ascertain the course of action to be undertaken with all decision recorded. The police are required to be notified, they must give consideration to investigating the possibility of a criminal acts. Sam is required to undergo a medical within 24 hours. As a foster carer is involved in the allegation, Ofstead should also be invited to the meeting as stipulated by the LCPP2003.
LCPP2003 states a strategy meeting must me held within 3 workings days however, if risks are immediate then the meeting can be held and decisions can be made over the phone. Normal procedures in strategy meetings would be to decide whether to place Sam on the Child Protection Register (CPR). In this scenario this would be unlikely to occur as Sam is currently accommodated and by placing him on the CPR, it would imply that the LA are incapable of efficiently undertaking their duty as stipulate in s.17 to safeguard Sam.
During the strategy meeting consideration will need to be given to the suspension of the foster carer and to any other children in the care of the alleged perpetrator.
A SW trained in Attaining Best Evidence and independent must interview Sam. This promotes impartiality and maintains a balanced view throughout the investigation (Brayne & Carr, 2008). TCDCA2000 stipulates that if the allegation is substantiated then the fostering panel must be notified and the ‘foster care review’, a statutory requirement, must be initiated.
Immediate action would need to be taken due to the nature of Sam’s allegation e.g. the alleged abuser can agree to leave the home (s.7(2)(6)LCPP2003). In order to ensure stability and to reinforce to Sam that the LA understands his concerns it may not be in Sam’s best interest to move him from his foster home. A written agreement can be implemented stating that the alleged perpetrator agrees not to return to the home or have any contact with Sam until decision/recommendations are made on completion of the s.47 investigation.
Sam is eventually moved to long term carers. They want to consider whether they should apply for Special Guardianship or consider adoption. They are clear they want Sam to remain permanently with them. However they are also aware that he will need to retain regular contact with Natalie, his Mother and his Great Aunt. They also know he will need long term support.
- As their supervising social worker you need to advise them. What would you discuss with them in relation to the legal options?
Adoption is governed by the Adoption and Children Act 2002 (ACA2002). Section 46(2)(a) ACA2002 terminates birth parents’ PR and s.67(1) ACA2002 transfers exclusive PR to the adopter(s), the child is treated in law as if born to them. Adoption has life-long effect, is irrevocable, ends the child’s relationship with the entire birth family and creates new relationships with the whole adoptive family. Adoption Orders (AO) make ‘adoption the most draconian order in human rights term, there can be no greater interference with family life than terminating family relationships forever’ (Davis 2009 p 240).
With a Special Guardianship Order (SGO) the parent(s) retain PR, s.14C(1)(b) CA1989 stipulates a special guardian (SG) is entitled to exercise PR to the exclusion of any other person with PR. Furthermore, unlike an AO a SGO is not irrevocable, but nor are they subject to parent’s automatic right to apply for a variation or discharge.
Compared to the AO there are some limits to the SG’s powers for example, they cannot change Sam’s surname or take him out of the UK for more than three months without the consent of all those with PR or court permission, nor is a SG a ‘parent’ therefore they can not appoint a guardian (Davis 2007 p84).
Special Guardianship Regulations 2005 places a duty on the LA to provide support services for SG’s. The LA must assess the need for services, report on the outcome of the assessment and draw up a package of support which may include counselling, financial support, respite care and meeting children’s therapeutic needs. The details of the support to be provided are decided by the LA. These support provisions closely resemble those provisions for adopters (Davis 2009 p87-88)
Finally, a SGO will last until Sam in 18 years of age whereas, an AO will last for a life time.
Sharon has now been discharged from hospital.
- What are the CMHT’s responsibilities towards Sharon.
As Sharon was detained under s.3, s.117 MHA1983 places a duty on the health authorities and social services to provide aftercare services for the rest of Sharon’s life or until the care is no longer required. This is supported by the DOH circular After-care Form for Discharge of Psychiatric Patients 1995 (AFDPP1995). A criticism, highlighted by R v Gloucester CC ex p. Barry (1997) is the ‘discretion across boroughs and indeed cases within boroughs as to the level and specific nature of service’ (Brayne & Carr 2008, p525-6). A further criticism when charging was acknowledged in R v Manchester City Council, ex p Stennett (2002), when it was considered to be unlawful to charge for services under s.117 (Brayne & Carr 2008, p551).
When devising a care plan the CMHT is required to consider Sharon’s needs and wishes (Clements, 2004). This is reinforced by Brayne & Carr (2008) when highlighting the need to consider the family. MHCOP emphasises the need to consider religious, cultural and social background.
1.2 MHCOP stipulates the “delivery of all MH services is framed within the care programme approach”, and Building Bridges 1995 makes it clear ‘the CPA can and should be applied to all patients who are accepted by a specialist psychiatric service’. The National Service Framework for Mental Health 1999 sets out seven key standards. Standard four provides guidance for what a MH Service user should receive if they are on a CPA, and The Effective Care and Co-Ordination in Mental Health Services 1999 sets out the current standard CPA are to adhere to. It is the responsibility of key workers to ensure that once a care plan has been agreed, it is reviewed periodically until no further action is required (Clements, 2004).
Alternatively, as Sharon was detained under s.3 and she is a patient suffering from one of the four specific forms of mental disorder, she may be subject to The Mental Health (Patients in the community) Act 1995, which introduced after–care under supervision, also known as Supervised Discharge. This order is likely to help ensure the patient will receive after-care services. However, this order can not impose a condition that the patient takes medication, failure to comply with the conditions of the order may lead to re-sectioning for further treatment (Brayne & Carr 2008).
If Sharon is provided with a lack of after-care services this can be a violation under Article 8 of the HRA1998 (Brammer 2007).
After six months it becomes apparent that living alone is not helping Sharon’s mental health and she moves in with her mother Dorothy. Dorothy is 75 years old. At first things go well but Dorothy has a fall and it becomes apparent that both she and Sharon need extra support.
- What are the Local Authority’s powers and duties towards Dorothy and Sharon?
Section 47(1)(a) of National Health Service and Community Care Act 1990 requires the LA to undertake an assessment of the needs of an individual for community care services. Dorothy should be assessed under the Fair Access to Care Services 2002(1) (FACS2002), which identifies four eligibility bands. The decision from R v. Gloucestershire County Council, ex parte Barry [1992]2 All ER 1 makes it clear that LA’s are justified in using eligibility criteria as a means of rationing resources (Brayne & Carr 2008). Also considering the National Framework for Older People 2001 which led to the Single Assessment Process, its purpose is to ensure that Dorothy receives appropriate, effective and timely responses to her health and social care needs, and that professional resources are used effectively (Crawford & Walker, 2004).
Whilst Dorothy may require a service, these services can not be imposed against her will, in accordance with GSCC COP 4.1 2002 Dorothy’s right to take risks must be respected. This contradicts COP 4.3 which promotes taking necessary steps to minimise the risks of service users from doing actual or potential harm to themselves. This supports Clements’ (2004) perspective that law and social work often contradict themselves. Section 1 of The Community Care, Services for Carers and Children’s Services (Direct Payments) Regulations 2003 places a duty on a LA to offer Dorothy Direct Payments to purchase services she may require.
Should Dorothy accept services through the LA, The Health and Social Services and Social Security Adjudication Act 1983, s.17 states that LA’s have the power to make reasonable charges for non-residential community services.
Section 9 of the Disabled (Services, Consultation and Representation) Person’s Act 1986 places a duty upon the LA to inform service-users of any other services that they or any other organisation provide for people with disabilities.
Section 1(1) of the Carers (Recognition and Services) Act 1995 and s.1(1)a of the Carers and Disabled Children Act 2000 (CDCA2000) gives Sharon the right to an assessment as a carer if she ‘provides or intends to provide a substantial amount of care on a regular basis for’ Dorothy.
Together with the ethos of social work practice of assisting and empowering individuals, Brayne & Carr (2008) notes the CDCA2000 recognises Sharon’s needs as an individual in her own right even if Dorothy is not known to services or refuses services. However, Brammer (2007) highlights that whilst there is an absolute duty to assess there is not a duty to provide services. The Disabled Person’s Service Consultation and Representation Act 1986 stipulate that the LA must access Sharon’s capability of providing care for Dorothy. The Carers (Equal Opportunities) Act 2004 places an obligation on LA to consider respite, education, training, work and leisure activities for Sharon, other options available are direct payments (Community Care [Direct Payments] Act 1996) (Brayne & Carr, 2008).
Natalie and two of her friends have been charged by the Police with robbery and they have been refused bail. They are appearing in the local Youth Court the next morning.
- Why might they have been refused bail? What are the legal responsibilities of the Youth Justice team in relation to Natalie and what options are available to the Court?
Section 34 of the Crime and Disorder Act 1998 (CDA1998) abolished the Doli Incapax ‘Burden on prosecution to prove child aged 10-14 knew what they were doing was seriously wrong as opposed to naughty (C(A Minor) v DPP [1996] 1 AC1; Stokes, 2000). Therefore, it was assumed by the police that Natalie was aware of her actions.
Burglary in a building other than a dwelling is an offence under s.9 of the Theft Act 1968 (TA1968) and the Bail Act 1976 (BA1976). The Police and Criminal Evidence Act 1984 (PACE) govern issues surrounding detention of juveniles and their release, with or without bail. Natalie may have been refused bail as stated in s.38 of PACE the juvenile will fail to appear in court to answer bail, further offending may occur, and to protect the young person for their own welfare (BA1976 s.1(3)).
Section 37 CDA1998 state, ‘the principal aim of the youth justice system is to prevent offending by children and young persons’. Section 38 places a duty on the LA to provide support for Natalie whilst she is in the criminal system. The CA1983 places a duty on the Youth Offending Service (YOS) to coordinate with the police and/or courts to proscribe Natalie from the criminal justice system (Gibson and Cavadino, 2002).
If the Police remand Natalie into LA care, s.38(4) of CDA1998, s.23 of the Children and Young Person’s Act 1969 and s.20 CA1989 states the YOS are to provide support to Natalie and the LA must provide a suitable accommodation. Section 38(4) states that the YOS must provide an appropriate adult (AA) for Natalie if her parents are not available. As stipulated by the PACE it is the duty of the AA to promote Natalie’s rights, interests, welfare, and ensure she fully understands proceedings (Johns, 2003). The youth justice SW must prepare a Pre-Sentencing Report to assist the court with sentencing (s.9 CYPA1969).
Whilst the courts make their decisions they would have regard for the welfare of Natalie and would abide by The UN Convention of Rights of the Child (1989) Article 3.1.
Section 23 of the CYPA1969 gives the court power to remand children and young people to LA accommodation if charged with an offence and not released on bail. Section 38(4) requires YOS to undertake an assessment for rehabilitation programmes (if Natalie were to receive a reprimand/final warning) and preparation of Court Reports. This supports the practice of parallel planning (Dugmore & Pickford, 2006).
Offences under s.1 and 9 TA1968 are punishable either on summary conviction or on indictment. The maximum sentence in a magistrates’ court is 6 months imprisonment and in the Crown Court 7 years custody for theft and 10 years for burglary in a building other than a dwelling (Sentencing Guidelines Council (SGC)). B(5)SGC a community sentence can be imposed, and a custodial sentence can be imposed only if a court considers that a community order or a fine alone cannot be justified in view of the seriousness of the offence
Principle of proportionality was introduced by the Criminal Justice Act 1991 (CJA1991), and modified within the youth justice system. When sentencing the court takes into consideration three principles, namely, regard to the prevention of offending, regard to the welfare of the child and sentencing must reflect the seriousness of the offending.
The CJA1991 introduced two statutory aims, the Sentencing Framework for Children and Young people explained achieving these statutory aims is not straight forward giving 3 main points: (1)A severe sentence can not be given to prevent offending where it does not reflect the seriousness of the crime, (2)judicial Studies Board points out intervention designed to prevent offending and help the child grow into a responsible adult is in fact promoting the young persons welfare, and (3)severe sentencing such as custodial sentences, effectively prevents crime in the short-term, but in the long-term will increase the chances of the child relapsing into crime.
Powers of Criminal Courts (Sentencing) Act 2000 is based on the notion of ‘just deserts’. Legislation to achieve this establishes thresholds that must be reached before certain penalties are enforced, known as the ‘3 sentencing bands’, (1) Custodial sentence, (2) Community sentence and (3) Lower-level order.
Before determining the sentence the court takes into consideration the seriousness of the offence and any mitigating factors personal to the young person such as social or educational disadvantages, this may lead to a more lenient penalty (The Sentencing Framework for Children and Young People 2003).
Conclusion
As seen above the law plays an important role in social work practice. There are advantages and limitations of the law. For example, Brayne and Carr 2008 explain a limitation is that there are boundaries set for practice however, an advantage being in this that there is huge discretion on ways to practice within those limits.
The law can convey objectives that oppress or marginalise people, rather than counteract discrimination and meet needs. Social work law is mostly ‘expressed as discretionary duties’ going against the social work commitment to value (Adams et al. 2002).
Cull & Roche (2001) share individuals working in social work are faced on a daily basis with dilemmas over what they can and should be doing as the law cannot provide an answer to the complex human questions that lie at the centre of social work tasks.
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Primary / Secondary Legislation
Adoption and children Act 2002. www.hmso.gov.uk/acts/acts2002/20020038.htm Accessed: 02.04.09
Criminal Justice Act 1991 http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_3#pt2 Accessed 09.04.09
Department of Health. (2003b). The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003. London: The Stationary Office.
Department of Health. (1970). Local Authorities Social Services Act 1970. London: The Stationary Office Limited.
Department of Health (1998). Human Rights Act 1998. London: Stationary Office.
Department of Health. (1999). National Service Framework for Mental Health: Modern Standard & Service Model. London: Stationary Office.
Department of Health. (1983). Mental Health Act 1983. London: Her Majesty’s Stationary Office.
Department of Health. (1948). National Assistance Act 1948. London: Her Majesty’s Stationary Office.
Department of Health. (1989). Children Act 1989. London: Stationary Office.
Department of Health, Home Office and Department for Education and Employment. (2000). Framework for the Assessment of Children in Need and their Families. London: HMSO.
Department of Health. (2002). Promoting the Health of Looked After Children. London: The Stationary Office.
Department of Health. (1970). Local Authorities Social Services Act 1970. London: The Stationary Office Limited.
Department for Education and Skills (2007) Care Matters: Time for Change. Norwich: HMSO
Department of Health. (1999). National Service Framework for Mental Health: Modern Standard & Service Model. London: Stationary Office.
Department of Health. (2000). Care Standards Act 2000. London: The Stationary Office.
Department of Health. (2000). The Carers and Disabled Children Act 2000. London: The Stationary Office.
Department of Health. (1990). National Health Service and Community Care Act 1990. London: Stationary Office.
Department of Health. (2001). National Framework for Older People. London: The Stationary Office.
Department of Health. (1995). Carers (Recognition and Services) Act 1995. London: Stationary Office.
Department of Health. (2000). The Carers and Disabled Children Act 2000. London: The Stationary Office.
Disabled Persons (Services, Consultation and Representation) Act 1986 http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1986/cukpga_19860033_en_1 Accessed 10.04.09
Department of Health. (2004). The Carers (Equal Opportunities) Act 2004. Stationary Office.
Department of Health. (1998). Crime and Disorder Act 1998. London: Stationary Office.
Department of Health. (1984). The Police and Criminal Evidence Act 1984 (Codes of Practice). London: TSO
Department of Health. (1976). Bail Act 1976. London: The Stationary Office Limited.
Department of Health. (1969). Children and Young Persons Act 1969. London: Her Majesty’s Stationary Office.
Department of Health. (2002a). LAC (2002)13: Fair access to care services: guidance on eligibility criteria for adult social care. London: The Stationary Office.
Department of Health (2008). Code of Practice Mental Health 1983. London: The Stationery Office.
Department of Health, Home Office and Department for Education and Employment. (1999). Working Together to Safeguard Children: A Guide to Inter-agency Working to Safeguard and promote the Welfare of Children. London: HMSO.
Department of Health. (2003a). Every Child Matters. London: The Stationary Office.
Department of Health 2002. Minimal Standards: Fostering Service Regulations. London: The Stationary Office.
Department of Health. (2002). National Minimum Standards for Fostering Services. London: The Stationary Office.
Department of Health (1996) Community Care (Direct Payments) Act 1996: policy and practice guidance. London: The Stationary Office.
Department of Health. (1995a). LAC (95) (1) (1995): After-care Form for the Discharge of Psychiatric Patients. London: Stationary Office.
Department of health (1995) Building Bridges: arrangements for inter-agency working for the care and protection of severely mentally ill people. http://www.dh.gov.uk/en/Publicationsandstatistics/Lettersandcirculars/Healthserviceguidelines/DH_4018062 Accessed 09.04.09
Department of Health. (1999). Effective care co-ordination in mental health services: modernising the care programme approach – A policy booklet. London: Stationary Office.
Department of Health. (2003b). The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003. London: The Stationary Office.
Department of Health (1984) LAC (84)7: Health and Social Services and Social Security Adjudications Act 1983, . London: The Stationary Office.
Department of Health. (1986). Disabled Persons (Services, Consultation and Representation) Act 1986. London: TSO.
London Child Protection Committee. (2003). London Child Protection Procedures. London: LCPC
Powers of Criminal Courts (Sentencing) Act 2000 http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000006_en_1 Accessed 09.04.09
Special Guardianship Regulations 2005 http://www.opsi.gov.uk/si/si2005/20051109.htm accessed 02.04.09
Theft Act 1968 http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=1204238
Accessed 10.04.09
The Mental Health (Patients in the Community) Act 1995 http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950052_en_1 Accessed: 06.04.09
The Sentencing Guidelines Council 2008 http://www.sentencing-guidelines.gov.uk/ Accessed 09.04.09
The Sentencing Framework for Children and Young People (2003) http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_3#pt2 Accessed 09.04.09
The United Convention of the Rights of the Child 1989 http://www.unicef.org/crc/ Accessed 02.04.09
Case Law
Aerts v Belgium (1998) 29 EHRR 50
C(A Minor) v DPP (1996) 1 AC1; Stokes 2000
R v Gloustershire County Council,ex p Barry (1997) 2 All ER 1
R v Manchaester City Council, ex p Stennet (2002) UKHL 34, (2002) 4 All ER
S-C (mental patient) (habeas corpus), re[1998] 3 All ER 673
St George’s Healthcare NHS Trust v S (1998) 3 WLR 936