What Are My Legal Rights If My Child Is Taken Into Care?

The last people executed in Britain were Gwynne Evans and Peter Allen in 1964 and 1965, English courts lost their power to hand down a death sentence.  Since that time, arguably the most invasive power judges have is that which allows them to remove a child from its parents.

Unfortunately, reports have shown that courts are removing children at a more rapid rate now than at any time since the 1980s.  During the 1990s and early 2000s, Courts were reluctant to remove children from their parents due to policymakers stating that the best outcomes for children were achieved if the family stayed together.

In 2017, almost 100,000 were in care and half of these were because of abuse and neglect.  However, according to The Economist, the rise in children being taken into care is not related to an increase in need; child homicide has fallen, and the number of children identified by councils as being at risk of sexual or physical abuse has reduced most years since the mid-1990s.  The reason for the increase in Care Orders in which a child is sent to live with people other than their parents is most likely the increased risk aversion of social workers, especially since the much-publicised death of Baby P in 2007.

If your child is taken into care, you are likely to be feeling a range of emotions including anger, humiliation, and fear that you may never get your child back.  In such a situation, the most powerful weapon you have is knowledge – knowledge of the process of how and why a Care Order is made and knowledge of your legal rights when it comes to having your child returned.

Care orders explained

Unless social workers identify an emergency situation, it is likely that you will have been involved in child protection meetings and visits from social workers for some time prior to the prospect of a Care Order being raised.  You may already have been subject to a Supervision Order, which puts your child under the supervision of a local authority.  A Care Order involves a local authority being given parental responsibility for a child, which they share alongside those who currently have parental responsibility.  However, the local government’s parental responsibility can override that of any others, insofar as it is necessary to safeguard the child.

A Care Order can only be granted by the Court if it is satisfied that the child is suffering or likely to suffer significant harm.  Harm means:

  • Ill-treatment (this included examples which are not physical such as sexual abuse and severe emotional abuse)
  • Damage to physical and/or mental health (this can include the effect of seeing another suffer abuse)
  • The impairment of physical, intellectual, emotional, social, or behavioural development

If a local authority makes an application to a Court for a Care Order, the process can take up to six months.  Therefore, it is likely that an Interim Care Order will be put in place to safeguard the child if there is a belief that they are at risk of harm.  However, the creation of an Interim Care Order will not be a determinative factor in the Court’s final decision.

As part of the process for making an application for a Care Order, the local authority will compile a Care Plan which outlines all the relevant steps to be taken by social workers if a Care Order is made.  Although a judge cannot dictate the contents of a Care Plan, he or she can refuse to grant a Care Order until they are satisfied with its contents.

What are your rights if a Care Order is granted?

If a local authority is granted a Care Order in relation to your child, you need to seek experienced legal advice immediately.   If you object to the Care Order being made, you may be able to appeal.  This must be done within 21 days of the order being granted and the right to appeal is only granted for limited reasons, such as a mistake made in law.

To end a Care Order, the route more likely to succeed is an application to have the order discharged under section 39 of the Children Act 1989.  However, you will need to allow some time to pass; very few Care Orders are discharged within a year of the order being made.

You may be eligible for legal aid to help pay for your case.  To successfully receive public funding, you will need to convince the Legal Aid Agency that you have made substantial changes since the Care Order was granted.  Any application will be means tested, meaning the agency will examine your assets and income as part of the application process.  Note that there is an automatic right to legal aid in proceedings relating to the Care Order being granted.

Section 39 does not provide any direction to the Court regarding factors to be considered when discharging a Care Order; therefore, the Court must make its decision based on the welfare of the child.  Matters such as the ongoing effect of the Care Order on the child and potential benefits of being placed back with their family will be examined.

A long road

No one should attempt to fight a Care Order alone.  Local authorities have access to top lawyers and barristers who can prepare and present a strong case to the Court.  Regardless of your education and experience, by not instructing a Solicitor to represent you, the chances are you will be on the back-foot from the very beginning of proceedings.  In addition, you will be trying to fight for your child whilst working through the emotional turmoil of being separated from them – a factor which would result in anyone being at risk of making rash and unwise decisions.

A Solicitor will protect you from making such choices, providing calm, pragmatic advice and representation and therefore a strong chance of success.

Rosie Bracher are specialist family law solicitors based in Barnstaple.  We have the knowledge and expertise to advise you on all matters involving children and family law.  Please contact our office on 01271 314 904 and arrange to speak to one of our team.