Social Work Law

Common Law

Based upon the judicial system

Decided upon by precedents which are set by 'similar' cases

Statute Law

Created by parliament as legislation

Law is proposed, discussed, accepted/rejected

Act of parliament

Common Law

Settles disputes between individuals e.g. divorce, child custody, land etc.

Burden of proof: balance of probabilities

Criminal Law

Creating laws for the protection of society as a whole and provides punishment for those who break it... e.g. violent crimes, drug involvement etc.

Usually conducted by the Crown Prosecution Service (CPS)

Burden of proof: beyond reasonable doubt

Public Law

Constitutional law - controls how the government sorts out constitutional matters

Administrative law - controls how Ministers and Public Bodies should operate and make decisions

Criminal law - part of public law as committing a crime goes against society

Private Law

Deals with the 'smooth running' of society e.g. employment law

Article 2: Right to Life

1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.     Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

a)     in defence of any person from unlawful violence;

b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c)     in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3: Prohibition of Torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4: Prohibition of slavery and forced labour

1.      No one shall be held in slavery or servitude. 

2.      No one shall be required to perform forced or compulsory labour. 

3.      For the purpose of this Article the term “forced or compulsory labour” shall not include:

a)      any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

b)      any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

c)      any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

d)      any work or service which forms part of normal civic obligations.

Article 5: Right to liberty and security

1.      Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

2.       Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.      Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.      Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.      Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Article 6: Right to a fair trial

1.      In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.      Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.      Everyone charged with a criminal offence has the minimum rights.

Article 7: No punishment without law

1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.     This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 8: Right to respect for private and family life

1.    Everyone has the right to respect for his private and family life, his home and his correspondence. 

2.    There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9: Freedom of thought, conscience and religion

1.    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.    Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10: Freedom of expression

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11: Freedom of assembly and association

1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.    No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Absolute

Can't be breached under any circumstances

Examples: Article 2, Article 3, Article 4, Article 7

Limited

Exceptions are already stated in the article

Examples: Article 5, Article 4(2), Article 6(1) 

Qualified

State can interfere in specific circumstances

Examples: Article 8, Article 9, Article 10, Article 11

The Act simplified, strengthened and combined current legislation, providing Britain with a new discrimination law that protects individuals from unfair treatment and promotes a more fair and equal society.

9 Protected Characteristics

Age, Disability, Gender reassignment, Marriage or civil partnership, Pregnancy or maternity, Race, Religion or belief, Gender, Sexual orientation

Section 1

Five principles:

1.    Presumption of capacity

2.    All practicable steps need to be taken to maximise capacity 

3.    Unwise decisions doesn't mean they lack capacity

4.    Acts done or decisions made under this act must be in their best interest

5.    Acts done or decisions made must be achieved in a way that is 'least restrictive' to meets their needs

Section 2
People who lack capacity- unable to make a decision at the time due to an impairment or disturbance of the brain. Assessment of Capacity - is there a disorder? If so does that mean they are unable to make a decision when they need to?

Section 3
Inability to make decisions. Four essential steps: Understand, Retain, Use or weigh up information and Communicate decision.

Section 4                                                                                                                                                                
Best interests- is person likely to have capacity in future? If likely, when? Try to get person to participate, consider their wishes, take views of carers or someone interested in welfare.

Section 5
Acts in connection with care and treatment- if acting to change care and treatment must establish capacity and make decision in best interest.

Section 6                                                                                                                                                          
Section 5 acts limitations- restraint to prevent harm.

What is an independent mental capacity advocate?
If an individual faces a serious medical decision or a decision on where to live and they lack mental capacity an IMCA can make the decision on their behalf.                      

What is a 'referrer'?                                                                                                  
Professionals that inform the MCA e.g. NHS staff and local authority

When do IMCA'S not need to be instructed?                                                                     Lasting power of attorney                                                                                                 Specifically appointed and instructed                                                                                   Personal Welfare Deputy appointed by the court 

How many assessment have to be completed and who by to apply for a deprivation of liberty?
6 assessments by 2 assessors - 1 trained Doctor with psychiatric experience and 1 social worker or OT

What is Mental capacity?                                                                                                        
Time specific + decision specific

Section 1(1) 
The welfare principle- the welfare of the child is the paramount consideration of the court.

Section 1(2)                                                                                                                               No delay principle- any delay is likely to prejudice the welfare of the child.

Section 1(3)
The welfare checklist: child’s wishes; needs; likely effect of change; characteristics court finds relevant; harm suffered or at risk of suffering; parents capabilities; and range of powers available to court.

Section 1(4)                                                                                            
Circumstances for court orders.

Section 1(5)
No order principle- it must be in the best interest for the child for an order to be made then not to make one.

Section 2                                                                                                        
Parental responsibility for children.                                                              
Section 3                                                                                                              Meaning of parental responsibility                                                                                Section 4                                                                                                               Acquisition of parental responsibility by father.                                                
Section 4ZA                                                                                                                      Acquisition of parental responsibility by a second female parent                   
Section 4A                                                                                                                          Acquisition of parental responsibility by a step parent                                                            Section 5                                                                                                             Appointment of guardians                                                                                                        Section 6                                                                                                                        
Guardians: revocation and disclaimer                                                                                    Section 7                                                                                                                                Welfare reports

Section 8

Child Arrangements Orders and Other Orders with Respect to Children

8(1) Child arrangements order means an order regulating arrangements:

(a)  With whom a child is to live, or have contact with

(b)  When a child is to live, or have contact with any person 

“a prohibited steps order”: no step which could be taken by a parent in meeting PR for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court.

“a specific issue order”: giving directions for the purpose of determining a specific question which has arisen, or may arise, in connection to PR for child.

8(2) Section 8 order means any order mentioned in this subsection

8(3) Family proceedings means any proceedings:

(a) Under jurisdiction of High Court in relation to children

(b) Under enactments mentioned in 8(4), but does not include proceedings on an application for leave under 100(3)

8(4) Enactments are:

(a)  Parts 1, 2 and 4 of Act                            (i)    Sections 11 and 12 of Crime and Disorder Act 1998

(b)  The Matrimonial Causes Act 1973         (j)    Part 1 of Schedule 2 to the Female Genital Mutilation Act 2003

(c)  The Domestic Violence and Matrimonial Proceedings Act 1976

(d)  The Adoption and Children Act 2002     

(e)  The Domestic Proceedings and Magistrates’ Courts Act 1978

(f)    Sections 1 and 9 of Matrimonial Hones Act 1983

(g)  Part 3 of Matrimonial and Family Proceedings Act 1984

(h)  The Family Law Act 1996

Section 9

Restrictions on Section 8 orders

Section 10

Power of Court to make Section 8 orders

Section 11

General principles and supplementary provisions

Section 12

Child Arrangements Orders and PR

12(1) Where

(a)  The court makes a Child Arrangements Order with respect to a child

(b)  The father of a child, or woman who is a parent of the child by a Section 43 of the Human Fertilisation and Embryology Act 2008, is named in order as person whom child has lived with, and

(c)  The father, or woman, would not otherwise have PR fo child

The court must also make an order under Section 4, giving them that responsibility.

12(1A) Same as 12(1), except court must decide whether it would be appropriate for father or woman to have PR of child. If it is decided that it is appropriate, the court must make the order under Section 4 giving them responsibility.

12(2) Where court makes a child arrangements order and a person who is not a parent or guardian is named as person the child will live with, they acquire PR for child.

12(2A)Where court makes a child arrangements order and:

(a) A person who is not the parent or guardian of the child concerned is named in the order as a person with whom the child is to spend time or otherwise have contact,

(b) The person is not named in the order as a person with whom the child is to live,

The court may provide in the order for person to have PR for child while paragraphs (a) and (b) continue to be met in the person's case.

12(3)Where a person has PR for a child as a result of subsection (2) or (2A), they shall not have the right—

(a) repealed

(b) to agree, or refuse to agree, to the making of an adoption order, or an order under Section 84 of the Adoption and Children Act 2002

(c) to appoint a guardian for the child.

Section 13: Change of child’s name or removal from jurisdiction 

Section 14: Enforcement of residence order

Section 14A: Special Guardianship Order: special guardian must be 18+ and not a parent of child 

Section 14B-G all about Special Guardianship Orders 

Section 15: Financial relief

Section 16: Family Assistance Orders

Section 16A: Risk Assessments

Section 17

Provision of services for children in need, their families and others.

17(1) General duty of LA:

(a)  To safeguard and promote welfare of children in area who are in need

(b)  So far as consistent with duty, promote upbringing of children by their families

By providing a range of services.

17(2) Every LA has specific duties and powers stated in Part 1 Schedule 2.

17(3) Any service provided may be for family of child in need, or any member of family, if provided to safeguard and promote wellbeing of child.

17(4) The Secretary of State May by order amend any provision of Part 1.

17(4A) Before determining services, LA must:

(a)  Ascertain child’s wishes and feelings regarding services

(b)  Give consideration (regarding age and understanding) to child’s wishes and feelings

17(5) Every LA:

(a)  Shall facilitate provision of others services, and

(b)  May make such arrangements as they see fit for any person to act on their behalf in provision of services

17(6) Services provided include accommodation and giving assistance in kind, or cash.

17(7) Assistance may be unconditional or subject to conditions as to the repayment of assistance or its value (in whole or part).

17(8) Before giving assistance or imposing conditions, LA shall have regard to child and both parents.

17(9) No person shall be liable to make repayment if in receipt of universal credit, income support, any element of child tax credit other than the family element, working tax credit, income-based job seeker’s allowance, or income-related employment and support allowance.

17(10) Child is in need if:

(a)  Unlikely to achieve or maintain, or have opportunity of achieving or maintaining, a reasonable standard of health or development without provision of services by LA

(b)  Health or development likely to be significantly impaired, or further impaired, without provision

(c)  Disabled

And “family”, in relation to child, includes any person with PR for child and any person whom child lives with. 

17(11) Child is disabled if blind, deaf or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability.

“Development” means physical, intellectual, emotional, social or behavioural.

“Health” means mental or physical.

17(12) Treasury may prescribe circumstances in which person is to be treated as in receipt of any element of child tax.

17(13) Duties imposed on LA do not apply in relation to a child in the area being looked after by an LA in Wales.

Section 17ZA: Young carers’ needs assessments

Section 17ZB: Young carers’ needs assessments: Supplementary

Section 17ZC: Consideration of Young carers’ needs assessments

Section 17ZD: Parent carers’ needs assessments 

Section 17ZE: Parent carers’ needs assessments: Supplementary

Section 17ZF: Consideration of Parent carers’ needs assessments 

Section 17ZG: Section 17 services- continued provision where EHC plan maintained

Section 17ZH: Section 17 services- transition for children to adult care and support

Section 17ZI: Section 17 services- provision after EHC plan no longer maintained

Section 17A: Direct payments

Section 17B: Vouchers for persons with PR of disabled children

Section 18: Day care for pre-school and other children

Section 19: Review of provision for day care, child minding etc.

Section 20: Provision of accommodation for children- general

20(1) LA shall provide accommodation for child in need in their area who appears to require it as a result of:

(a)  No person with PR for them         (b)  Being lost or having been abandoned

(c)  Person caring for child is being prevented (permanent or temporary) from providing accommodation

20(4) La can provide accommodation for any child in their area (even if person with PR can provide accommodation) to safeguard and promote the child’s welfare.

20(6) Before providing accommodation the LA shall

(a)  Ascertain child’s wishes regarding accommodation               (b)  Give due consideration to child’s feelings and wishes.

20(8) Any person with PR may remove the child from accommodation provided by LA.

Section  21: Provision of accommodation for children in police protection or detention or on remand, etc.
21(1) Every LA shall provide accommodation of children who are removed or kept away from home under Part 5.

Section 22: General duty of LA in relation to children looked after by them

22(1) A child looked after by the LA is any child who is:

(a)  In their care                 (b)  Provided with accommodation by LA

22(3) Duty of LA looking after child:

(a)  To safeguard and promote welfare 

(b)  Make use of services available for children cared for by own parents as appears reasonable

22(4) Before making decision about child LA looking after, they must ascertain the feelings and wishes of:

(a)  Child   (b)  Parents    (c)  Person with PR  (d)  Any other person who the LA consider relevant 

Section 23: Provision of accommodation and maintenance by LA for children whom they are looking after

Section 24: Persons qualifying for advice and assistance

Section 24A: Advice and assistance

Section 24B: Employment, education and training

Section 25: Use of accommodation for restricting liberty

Section 25A: Appointment of independent reviewing officer

Section 25B: Functions of the independent reviewing officer

Section 26: Review of cases and inquiries into representations

Section 27: Co-operation between authorities

Section 28: Consultation with local education authorities

Section 29: Recoupment of cost of providing services etc.

Section 30: Miscellaneous

Section 31: Care and supervision 

31(1) On application of LA or authorised person, the court may make an order:

(a)  Placing child in care of a designated LA

(b)  Putting child under supervision of designated LA

31(2) Court may only make care or supervision order if it is satisfied:

(a)  That child is suffering, or likely to suffer, significant harm, and

(b)  The harm, or likelihood of harm is attributable to:

(i)    Care given to child, or likely given if order not made, not being what is reasonable to expect a parent to give

(ii)    The child’s beyond parental control.

31(3) No care or supervision order can be made if child reached the age of seventeen, or sixteen if married.

31(3A) A court deciding whether to make a care order:

(a)  Is required to consider the permanence provisions of Section 31A plan for child, but

(b)  Is not required to consider the remainder of Section 31A plan

31(3B) The permanence provisions of a Section 31A pan are:

(a)  Setting out long-term plan for upbringing of child concerned:

(i)    Child to live with any parent, or any other member of, or any friend of, the child’s family

(ii)    Adoption   (iii)    Long-term care not with (i) or (ii)

(b)  Plan’s provisions set out following:

(i)      Impact on child of any harm they suffered or likely to suffer

(ii)      Current and future needs of child 

(iii)      Way in which long-term plan for upbringing would meet the current and future needs.

31(3C) The Secretary of State may by amend this section.

31(4) Application may be made on its own or in other family proceedings.

31(5) The court may:

(a)  On application for care order, make supervision order

(b)  On application for supervision order, make care order

31(6) Where authorised person makes application:

(a)  Is it reasonably practicable to do so

(b)  Before making application consult LA where child is resident

31(7) Application by authorised person will not be entertained by court if child is:

(a)  Subject of an earlier application for order, which has not been disposed of

(b)  Subject to:

(i)    Care order or supervision order        (ii)    Youth rehabilitation order

(iii)    Compulsory supervision order or interim compulsory supervision order

31(8) La designated in care order must be:

(a)  The authority where the child lives

(b)  Where child does not reside in area of LA, the authority within whose area any circumstances arose in consequence of which order is being made

31(9) In this section:

“Authorised person” means

(a)  NSPCC

(b)  Any person authorised by order of Secretary of State 

”Harm” means ill-treatment or the impairment of health or development, including impairment suffered from seeing or hearing the ill-treatment of another.

“Ill-treatment” includes sexual abuse and forms of ill-treatment that are not physical.

31(10) Whether harm suffered by a child is significant turns on the child’s health or development, health and development shall be compared to what is reasonably expected of a similar child.

31(11) In this Act:

“a care order” means  an order under subsection (1)(a) and includes an interim care order made under section 38.

“a supervision order” means an order under subsection (1)(b) and includes an interim supervision order made under section 38.

With care order parent retains PR and LA acquires it. Child becomes looked after.

With supervision order parent retains PR and LA doesn't acquire it. Child is not looked after.

Section 31A: Care Orders: Care Plans

Section 32: Period within which application for order under this Part must be disposed of

Section 33: Effect of care order

Section 34: Parental contact etc. with children in care

Section 35: Supervision orders

Section 36: Education supervision orders

Section 37: Powers of court in certain family proceedings

Section 38: Interim Orders

Section 38A: Power to include exclusion requirement in interim care order

Section 38B: Undertakings relating to interim care orders

Section 39: Discharge and variation etc. of care orders and supervision orders

Section 40: Orders pending appeals in cases about care or supervision orders

Section 42: Right of officer of service to have access to LA records

Section 41: Representation of child

41(1) The court shall appoint an officer of the service for child, unless satisfied that it is not necessary to do so to safeguard child’s interests.

41(2) The officer of service shall:

(a) Be appointed in accordance with rules of court

(b) Be under a duty to safeguard the interests of the child.

41(3) Where:

(a)  Child is not represented b a solicitor

(b)  The conditions meant in subsection (4) is satisfied

The court may appoint a solicitor to represent the child.

41(4) Conditions are that:

(a)  No officer of the service has been appointed

(b)  Child has sufficient understanding to instruct a solicitor and wishes to do so

(c)  It appears it would be in the child’s best interests to have a solicitor

41(6) “Specified proceedings” include:

(a)  Application for care or supervision order

(b)  Court has been given direction under 37(1) and has made or considering an interim care order.

(c)  Application for discharge of a care order or variation or discharge of supervision order.

Section 43: Child assessment orders

43(1) On application from LA or authorised person for an order, the court may make order if it is satisfied that:

(a)  Applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm

(b)  Assessment of state of child’s health or development, or way being treated, is required to enable applicant to determine whether or not child is suffering, or likely to suffer, significant harm

(c)  Unlikely that such an assessment will be made, or satisfactory, in the absence of an order under this section

43(3) A court may treat an application under this section as an application for an emergency protection order.

43(4) No court shall make a child assessment order if it is satisfied:

(a)  There are grounds for making an emergency protection order with respect to child

(b)  That it ought to make an order other than a child assessment order

Section 44: Orders for emergency protection of children

44(1) Applicant applies to court for an order to be made, court may make order if satisfied that:

(a)  Reasonable cause to believe child is likely to suffer significant harm if

(i)      Not removed to accommodation provided by applicant

(ii)     Does not remain in place being accommodated 

(b)  When made by LA

(i)      Enquiries being made with respect to the child under section 47(1)(b)

(ii)     Those enquiries are being frustrated by access being unreasonably refused and applicant has reasonable cause to believe access to child is required as a matter of urgency

44(4)While an order under this section (“emergency protection order”) is in force it:

(a)  Operates as a direction to person in position to do so to comply with any request to produce the child to the applicant

(b)  Authorises: (i) removal to accommodation (ii) prevention of child’s removal from hospital

(c)  Gives applicant PR for child

44(6) Where court makes emergency protection order, it may give such directions:

(a)  Contact which is, or is not, to be allowed between child and any other named person

(b)  Medical or psychiatric examination or other assessment of the child

44(13) Where emergency protection order has been made, the applicant shall (subject to subsection 6) allow child reasonable contact with: 

(a)  Parents

(b)  Any person who is not a parent, but has PR

(c)  Any person whom child was living with immediately before the order

(d)  Any person name in child arrangements order

(e)  Any person allowed to have contact under section 34

(f)    Any person acting on behalf of any of those persons

Section 44A: Power to include exclusion requirement in emergency protection order

Section 44B: Undertakings relating to emergency protection orders

Section 45: Duration of emergency protection orders and other supplemental provisions

Section 46: Removal and accommodation of children by police in cases of emergency

46(1) Where a constable has reasonable cause to believe a child would otherwise likely to suffer significant harm, they may:

(a)  Remove child to suitable accommodation and keep there

(b)  Take steps that are reasonable to ensure child’s removal from any hospital, or other place, is prevented

46(2) Child that constable has exercised powers under this section is referred to as having been taken into police protection.

46(6) No child may be kept in police protection for more than 72 hours.

Section 47

LA’s duty to investigate

47(1) Where a local authority:

(a)  Informed a child who lives, or is found, in their area: 

(i)             Subject to emergency protection order

(ii)            In police protection

(b)  Have reasonable cause to to suspect a child who lives, or is found, in their area is suffering, or likely to suffer, significant harm

The LA shall make enquiries as they consider necessary to enable them to decide whether to take action to safeguard or promote child’s welfare.

Section 48

Powers to assist in discovery of children who may be in need of emergency protection

Section 49

Abduction of children in care etc.

Section 50 

Recovery of abducted children etc.

Section 51

Refuges for children at risk

Section 52

Rules and regulations