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Children of the State

By Caragh Deery - Law Student @ St Hilda's College, Oxford


[CW: discussion of the legal treatment of child abuse]

S31(1) of the Children Act (CA) 1989 permits a court, on the application of a local authority, to place a child in the care of a designated local authority, or to put a child under its supervision. If the court makes a care order in respect of a child, the local authority has parental responsibility over that child. It can make decisions for the child and override the wishes of the parents. Such an order lasts until adulthood (unless it is discharged), and the child is treated as a “looked after child”. Where the court makes a supervision order in respect of a child, the child can usually stay in the family home, but the local authority will be under an obligation to advise and assist the child. These orders last for up to one year but can be extended annually.

In Re J[1] Lady Hale points out that “in a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth”. This is surely correct. Article 8 of the European Convention on Human Rights protects the right to a private and family life. The state does not and cannot take away the children of all the people who commit crimes, or who abuse alcohol and drugs (Lady Hale, Re B[2]). Unless we adopt a totalitarian approach to state intervention, society must be willing to tolerate very diverse standards of parenting, “including the eccentric, the barely adequate and the inconsistent (Hedley J, Re L[3]).

There must be a relevant or sufficient reason for the state to intervene. The threshold criteria for care and supervision orders are