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Section 17(10) of the Children Act 1989 (“CA 1989”) defines that a child under 18 who needs the local authority services for their reasonable standard of development or health, for preventing significant harm or further harm to their health or development; or who are disabled is a “child in need”.
In the current case, Tomas and Sophie are under 18 years of age. They have been exposed to a home environment where their mother, Lynette was subject to domestic abuse, and where Lynette suffers from depression and alcohol misuse. Such home environment is not suited for reasonable standard of development or health of both Tomas and Sophie. As such, Tomas and Sophie are “child in need” and they need the local authorities’ services.
Lynette cannot manage her emotional problems, stress and drinking problem. She is neglecting the children’s physical, mental and emotional care. Hence, there is a serious concern about Tomas and Sophie.
The serious concern arises from the fact that that Tomas and Sophie are subject to harm, as defined by Section 31(9) of CA 1989, where they are exposed to ill-treatment or impairment of their health or development due to Lynett’s conditions. Comparing their health or development condition with another child in similar condition, as per Section 31(10) they are subject to significant harm.
Section 7 of Local Authority Social Services Act 1970 requires the local authorities to make a referral about Tomas and Sophie’s social care. The social worker, on receipt of the referral, within one working day should make a decision concerning whether or not an urgent action is needed or the children requires immediate protection. The Children’s Social Care will deal with the referral and determine whether a referral should be responded to on the basis of whether Tomas and Sophie are in need of support under Section 17 or in need of protection under Section 47 of the CA 1989 (Tees Safeguarding Children Partnerships' Procedures , 2021).
As per Section 47 of CA 1989, local authority must investigate in order to decide action to safeguard or promote Tomas’ and Sophie’s welfare. This will help determine whether or not they need to make any application to court or exercise their powers under this Act.
Given the conditions at their home, there must be safeguards and welfare of Tomas and Sophie. The social worker can conduct an assessment under the CA 1989, s17(1) for safeguarding and promoting the welfare of Tomas and Sophie. After the court gives a care order or supervision order under Section 31(1), the social worker should set up a care plan for the children.
The social worker should not ignore the possibility of upbringing of the children by their families, as per Section 17(1)(b). Section 17(4A) requires due consideration to the wishes and feelings of the children. According to the needed plan, as per Section 17(6), the local authority must make arrangements including accommodation and giving assistance in cash or kind.
The local authority, as per Section 17ZA, must carry out a young carer's needs assessment in order to determine whether or not a young carer needs support and the type of the needs if the authority feels that such young carer may need the support. In this case, Tomas is a young carer as he provides emotional support to Lynette and ‘parentified role’ to Sophie. As such, the needs assessment must consider this particular aspect.
The plan must be made according to CA 1989, s31A and must comply with the Care Planning, Placement and Case Review (England) Regulations 2010. Major responsibilities fall on the lead social worker (London Child Protection Procedures, 2020).
Sophie is subject to significant physical harm with high possibility of being subject to sexual abuse by Robert who has several convictions under the under the Sexual Offences Act. Her absence from school for a week, wetting her bed, and suffering burns are all signs that she is not taken care of properly. The failure of the school to speak with Sophie and that of Children’s Services to speak with Lynette all points to the requirement of police entry under Section 46(1) of CA 1989, to assess the situation and also to remove Sophie from the accommodation. According to Section 46(6), no child can be kept in police protection for more than 72 hours.
An application must be made to the court for orders for emergency protection of Sophie, as provided under CA 1989, s44. According to Section 45(1), emergency protection orders cannot be more than 8 days from the day the child is taken to police protection under Section 46.
The order must be for the safeguard and welfare of the Sophie. This is necessary given that both Tomas and Sophie are subject to significant harm, as seen in Q1 as per Section 31(9) and 31(10). This is supported by the fact that Lynette is suffering from an unstable mental and emotional health status, which is affecting Tomas’ emotional health considering that he is subject to bullying and physical altercation at school.
The local authority should then initiate enquiries under CA 1989, Section 47(1) to assess whether or not action to safeguard or promote their welfare is needed. Such assessment must consider the factors harm, such as Lynette’s mental health difficulties, her substance misuse, injury to Sophie, ill-treatment and violence by Brenda and possible sexual abuse by Robert.
The maximum timeframe for a statutory assessment should be no longer than 45 working days from day of referral (Department of Education, 2014).
A Section 47 inquiry will ensure assessment of immediate and long-term risks (London Child Protection Procedures, 2020). As per Section 47(5A), the enquiries procedure is to ascertain and consider interests, wishes and feeling of Sophie and Tomas. As per Section 47(6), it must be used to enable access to the children and receive emergency protection, a care, a child assessment, or a supervision order.
There should be a planned emergency action after a strategy discussion between the local authority, police and other relevant agencies. In case there is a need for further investigation of Tomas and Sophie’s health and development where they are not considered to be in immediate danger, the local authority should apply for a child assessment order (Department of Education, 2014). This application must be done according to Section 43 of CA 1989. So, while considering emergency action, it is also necessary to consider the needs of Tomas. Tomas has been under unreasonable expectations and has been providing emotional support to Lynette and ‘parentified role’ to Sophie. He has got into fights and has been subject to online bullying. In this regard, considering both Tomas and Sophie’s education, the local authority must be consulted, according to Section 47(5), CA 1989, for necessary arrangement for provision of education.
Lynette did not have any awareness of where she was for seven days until when Children’s Services were informed that she was an inpatient in a mental health unit in Birmingham. The manner in which she was found by passerby with an unstable mental state and physical health and the report by the hospital psychiatric team are relevant circumstances for making an application for admission or detention in a hospital necessary.
Lynette’s mental condition requires an urgent necessity for an Approved Mental Health Professional (“AMHP”) to make the application for admission for assessment under Section 4(1) of Mental Health Act 1983 (“MHA 1983”). The application must include a statement that Lynette must be urgently admitted and detained. Such statement can describe the mental and physical condition of Lynette including her brain damage consistent with Wernike-Korsakoff syndrome, delirium from alcohol withdrawal, or injury and the need for further assessment.
According to Section 2 of MHA 1983, an application can be made for admission of Lynette for assessment given that she is suffering from a mental disorder ((S2(2)(a))). Her inability to make her own decision is explained below citing Section 3(1) of the Mental Capacity Act 2005 (“MCA 2005”). She must detained in the interests of her own health or safety (S2(2)(b)).
Following Section 5(1), even though Lynette is already in an in-patient, an application must be made for admitting Lynette in the hospital.
Under Section 13(2), the AMHP must interview Lynette in a suitable manner and satisfy himself that detention of Lynette in a hospital is the most appropriate way to provide her care and medical treatment.
Under Section 13(1) of MHA 1983, the AMHP can make applications for admitting Lynette to the hospital. AMHP can consider Lynette’s case on her behalf. This is particularly relevant as the Lynette is not able to make decisions for herself. According to Section 3(1) of MCA 2005, Lynette is unable to make a decision for herself. She was not able to retain the information during the conversation in the hospital with the nurses and doctor. She was also not able to appreciate what might happen to her if she leaves the hospital untreated. This does not mean that she lacks mental capacity. According to Section 2 of MCA 200, she was able to decide to go back to London to return to take care of Tomas and Sophie. She also understood that the children are with Brenda, which she never would have agreed as Brenda cannot even look after herself.
According to Section 2(4) of MHA 1983, Lynette may be detained for a period no longer than 28 days from the day she is admitted.
Lynette has the inability to make decisions, according to the criteria provided under Section 3 of MCA 2005. She, however, has the mental capacity, according to Section 2(1), to make decision of returning home and taking care of Tomas and Sophie. Lynette cannot be considered to have the mental capacity to make a decision.
It is necessary to assess the best interest scenario according to Section 4. The person who makes the determination of the Lynette’s best interest must not based its determination merely on condition of her, or an aspect of her behaviour as it may lead to an unjustified assumptions about Lynette’s best interests (Section 4(1)(b) of MCA 2005. While determining best interest, Lynette’s wishes and feelings must be considered (S4(6)(a)). In this case therefore, the determination must consider her feelings of returning home and taking care of her children.
According to Section 4(7)(a), the person making the determination of Lynette’s best interest must consult anyone named by her on a matter in question. In this case, Lynette was talking about keeping her family together and wanted Burak to come home upon his release from prison. Lynette wished that Tomas and Sophie needed a relationship with their father. She believed Burak has never hurt the children and that he has changed his behaviour. Based on this feeling and wish, Burak must be consulted while determining what would be best for Lynette and her family.
Consulting Burak will be very important in this case, as the children are without proper care and support.
Addressing the issues of mental capacity of Lynette is relevant to planning for the children. According to Section 2(1), Lynette and Burak have the parental responsibility for the children. In the current case, it is Lynette with the parental responsibility. According to Section 2(9) and 2(10), Lynette can arrange for Burak to undertake some of all or the parental responsibility.
The best interest determination must consider all the circumstances of the case. Lynette does not lack mental capacity, bit is currently having an inability to decide. As a result, it is in her best interest to be detained, treated and assessed as to her mental and physical state and the treatment that is needed. In regard to her children, it is in her best interests to consult with Burak what all measures will be appropriate, including sharing parental responsibility for the children and the family while she is being treated and after her treatment.
Section 117 (2) of MHA 1983 imposes a duty on the local social services authority to provide after-care services to Lynette after her discharge from the hospital. This after-care service will be provided until the local social services authority is satisfied that Lynette does no longer need the services.
According to Section 117(1), the provision of after-care services is applicable to patient who is detained under Section 3. As seen earlier, Section 3 is applicable to Lynette and hence, the after-care services duties under Section 117(2) become applicable in Lynette’s case.
According to the Care Act 2014 (CA 2014”), s1(1) and s1(2) require local authority to promote Lynette’s well-being, which includes her personal dignity, her treatment with respect, physical, mental and emotional well being, her control over her daily life, and domestic, family and personal relationships amongst other things. The local authority, according to s1(3), must respect her wishes and feelings, keep restriction of her rights and freedom to minimum, and respect her participation in decisions.
According to Section 8(1) of CA 2014, the local authority must consider the needs of Lynette, including putting her in a care home, care and support at her home, counselling her, and provide her with necessary information and advice.
Section 9(1) requires the local authority to assess the needs for care and support of Lynette.
Section 13(1) of CA 2014 requires the local authority to assess whether or not Lynette meets the eligibility criteria to access the after-care services. Section 13(7)(a) and (b) provide that the needs of Lynette will meet the criteria if the needs meet a description stipulated in relevant regulations or they form part of a combination of needs of a stipulated description.
Lynette will be eligible for the care, as per the Care and Support (Eligibility Criteria) Regulations 2015. Lynette is a carer and according to Section 3(2)(b), she is not in a position to carry out her responsibilities, amongst other things, as a carer for her children; to maintain a habitable home environment in her home; to manage and maintain nutrition of her children; and to develop and maintain family or personal relationships. According to Section 3(3), she will be not able to perform her responsibilities without assistance.
Section 18(1) of CA 2014 imposes a duty on the local authority to ensure the needs for care and support of Lynette are met.
Section 24(1)(a) of CA 2014 requires the local authority to a care and support plan for Lynette. Subsection b requires the local authority to inform Lynette the need that is to be met by direct payments, and help her decide the manner in which the needs be met.
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