Family Law: The Children Act of 1989

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This essay will first address the statute used and interpretation of the threshold test by the courts, and then focus on cases involving vulnerable children to assess whether the statute in The Children Act 1989 is sufficient in protecting these children from harm. I will look at the argument in favour of the current approach taken by the courts, and the counter-argument in favour of changing the current approach. The arguments are delicately balanced and the law is always developing, so it will be interesting to see how the Supreme Court resolves this issue in future. The grounds for making a supervision or care order can be found in in s.31 of The Children Act 1989. Before a supervision or care order can be made, there are four areas that must be established. The court must show that ‘the child concerned is suffering or likely to suffer, significant harm’. Under s.31(2)(b) it states that, ‘The harm, or likelihood of harm, is attributable to: (i) 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 him; or (ii) the child’s being beyond parental control’. The last two criteria are that the making of the order would promote the welfare of the child, and it is better for the child than making no order at all. A care order was explained in Hunt’s major study on care proceedings as a “last resort” and should only be used if all other options have been explored . The first two parts illustrate the threshold test. There are definitions under s.31(9) of The Children Act 1989 for the words used in s.31(2)(a) of the Children Act 1989. Harm is defined as ‘ill-treatment or the impairment of health or development’. ‘Development’ is defined as ... ... middle of paper ... ...d, ‘so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect than an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged’. This approach was later applied in Merton LBC v K . Works Cited • A. Bainham, ‘Uncertain Perpetrators and Siblings at Risk’ (2011) The Cambridge Law Journal 3 (70) pp. 508-511 • C. Cobley & N. Lowe, ‘Interpreting the Threshold Criteria Under Section 31(2) of the Children Act 1989 – the House of Lords Decision in Re B’ (2009) Modern Law Review 72 (3) • C. Cobley & N. Lowe, ‘The stautory “threshold” under section 31 of the Children Act 1989 – time to take stock’ (2011) Law Quarterly Review 396 • J. Hunt et al, ‘The Last Resort’ (1999) • The Guardian Newspaper, ‘National: News: Care Decision’ (18 November 2008) p.8

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