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Legislation for Northern Ireland

The Department of Health, Social Services and Public Safety is one of 11 Northern Ireland Departments created in 1999 as part of the Northern Ireland Executive by the Northern Ireland Act 1998 and the Departments (Northern Ireland) Order 1999.

The Department’s brief includes the formulation of policy, the preparation of legislation and the issuing of guidance. There is a Social Services Inspectorate located within the Department which has responsibility for providing it with professional advice and for conducting thematic inspections of both adult and children’ social services.

The Department’s overarching duty, placed upon it by Article 4 of the Health and Personal Social Services (NI) Order 1972 (“the 1972 Order”) is to:

  • provide or secure the provision of integrated health services to promote the physical and mental health of the people of Northern Ireland; and
  • provide or secure the provision of personal social services designed to promote their social welfare.

Health and personal social services are delivered to the general public by Health and Social Services Boards and Health and Social Services Trusts.

The five Health and Social care Trusts (HSC) in Northern Ireland are responsible for providing fostering services. There are also a number of independent and voluntary Agencies that provide fostering services to the HSC Trusts.

Fostering

Guidance and Regulations

Current Northern Ireland legislation relating to fostering includes:-

  • The Children (Northern Ireland) Order 1995
  • The Children (Private Arrangements for Fostering) Regulations (Northern Ireland) 1996
  • The Foster Placement (Children) Regulations (Northern Ireland) 1996
  • The Arrangements for Placement of Children (General) Regulations (Northern Ireland) 1996
  • The Review of Children's Cases Regulations (Northern Ireland) 1996
  • The Placement of Children with Parents etc. Regulations (Northern Ireland) 1996
  • The Representations Procedure (Children) Regulations (Northern Ireland) 1996

Guidance to HSC Board and Trusts on fostering is contained within the "Guidance & Regulations Volume 3 - Family Placements and Private Fostering" which is available on the government website at www.nics.gov.uk/ni-direct/dhss/child/volume3.pdf.

Individual Health and Social Care Trusts may also provide publications tailored to aspects of foster care.

Primary Legislation

The law reflects changing social attitudes and assumptions and undergoes constant reform in the courts as established principles are interpreted, clarified or reapplied to meet new circumstances. However, substantial changes to the law are the responsibility of government through the enactment of primary legislation.

Although loosely termed “primary legislation” in Northern Ireland, Orders in council made under either the Northern Ireland Acts 1974 and 2000 are regarded as “delegated or subordinate legislation” at Westminster and are termed statutory instruments.

The Children (Northern Ireland) Order 1995 (S.I. 1995/755 (NI 2))

The Children Order is the principal statute governing the care, upbringing and protection of children in Northern Ireland. It affects all those who work with and care for children, whether parents, paid carers or volunteers. The Order reformed, and brought together, most of the “public” and “private” 1 law relating to children relating to children in a single coherent statutory framework along the lines of the Children Act 1989 in England and Wales.
The Children Order is a large piece of legislation consisting of nearly 200 Articles (arranged into 12 Parts) and 10 Schedules.

Amendments to the Children Order

Since the Children Order became law, there have been numerous amendments to the Order by other legislation. While some of these have constituted a significant change in the law, others have been of a minor or purely technical nature. An updated version of the Order can be found on the Northern Ireland legislation section of the HMSO website (site under “Updated Statutes of Northern Ireland 1921 – 2002”)

Principles of the Children Order

Children do best in families

The Children Order believes that there are unique advantages to a child being brought up within his or her own family. In practice, this means that the Order sees families as a major way of supporting and helping children. The Children Order gives HSS Trusts the power, and in some circumstances the duty, to help children by providing services to their families.

At the other end of the scale, where a child may have been harmed perhaps through abuse or neglect, there should be strong efforts made to keep the child with his or her own family, moving adults out if necessary. Only in the last resort and to protect the child, should a child be removed from the family setting.

Children do best in families. This means that wherever possible children should be brought up and cared for in their own families. This is a key principle and professionals have a duty to work to keep children in their homes, wherever possible.

The welfare of the child must come first

This principle is called the “welfare principle” or the “paramountcy principle”. Where there are family tensions, it may be that a child’s welfare comes second to that of adults who are much better placed to make their views known and to take action. The Children Order reverses this – in court, a child’s welfare comes first.

It is not always clear what is best for the welfare of a child in any particular circumstance. The Children Order gives some guidance on this – Article 3 contains a list of elements which a court must consider when trying to reach a clear picture of what the child’s welfare is in any particular case. This is known as the welfare checklist.

When the look at the “welfare checklist” you will see that one way of finding out what is best for a child is to ask the child! However, this is only one of the factors to be considered and the child’s view has to be seen in light of his or her age and understanding.

Parental responsibility

The general philosophy of the Children Order is that primary responsibility for raising children rests with parents. Parental responsibility for the welfare of their children remains with them, even after a family break up unless a court says otherwise. The Children Order defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This includes the entitlement to make all major decisions about a child – name, education, place of residence, medical treatment etc.

Who has parental responsibility?

When a child is born to married parents, both have parental responsibility from birth3. If the parents are unmarried, the mother alone has parental responsibility from birth. The (biological) father may acquire parental responsibility by formal agreement with the mother or by court order5. From 15 April 2002, an unmarried father who jointly registers the birth of his child with the child’s mother will acquire parental responsibility for that child. When a father does not have parental responsibility his is not entitled to make decisions about his children such as a change of name, education, place of residence, etc unless the child’s mother or other persons with parental responsibility agree. A mother’s parental responsibility or that of a married father can only be ended by the making of an adoption order.

Individuals other than parents can acquire parental responsibility. Such individuals may acquire this by:

  • adoption order, in which case the adoptive parent(s) acquire all the responsibility formerly held by the parent(s) and that of the parent(s) is extinguished:
  • being appointed guardians (after a parent’s death) giving the guardians all the parental responsibility that parents would have;
  • residence order, in which case their parental responsibility is subject to certain limitations;
  • parental order (under the Human Fertilisation & Embryology Act 1990), full and permanent parental responsibility is conveyed by this order to a married couple of a child born in surrogacy, where at least one of the couple is a genetic parent of the child.

Parental responsibility is acquired by HSS Trusts by:

  • the making of an emergency protection order which gives an HSS Trust temporary and limited parental responsibility;
  • the making of a care order or interim care order. An HSS Trust acquires parental responsibility which is shared with the parent(s) or guardian. The Trust is entitled to decide the extent to which the parent(s) or guardian exercise their parental responsibility, and has the right to decide where and with whom a child lives;
  • the making of a freeing for adoption order. An HSS Trust acquires sole parental responsibility for the child – the parental responsibility of the birth parent(s) or other is extinguished.

Working in partnership succeeds best for children

The idea of partnership is central to the way the Children Order operates. The Order recognises that professionals such as social workers should work in partnership with parents to keep children safe and promote their welfare. Because the Order also recognises that children should be given a voice in what happens to them, it gives opportunities for working in partnership with children as far as their age and development allows. The Order also emphasises the importance of different professionals working in partnership, and this includes those from both statutory and voluntary bodies.

The Children Order recognises that sometimes it will be necessary to act against parents’ wishes where the child is at risk. However, the aim is to work with parents through voluntary arrangements wherever possible. Even where children are considered at risk, parents should be kept informed and consulted at each stage. They should be invited to conferences between professionals where abuse is suspected and they should be helped to take an active part in the discussion and decision making process. Children too may be invited to this kind of meeting.

Courts will not intervene in family life unless the welfare of the child requires it

The Children Order states that a court shall not take action by making a court order “unless it considers that doing so would be better for the child than making no order at all. This is known as the “no order” rule. The idea that no action by a court may be preferable to action, is an important one. It reflects the value the Order places on family life and the idea that no-one should intervene in family life without good cause.

In practice this means that families who are experiencing difficulties are encouraged to work out their own solutions with the welfare of the children in mind. Only where this proves impossible will a court take action. In all cases where children’s welfare or safety are concerned, the courts will consider whether it is better for the court to make an order, or whether voluntary arrangements are possible which will safeguard the child without an action from the court.

Principles to be followed

Welfare

An HSS Trust has a duty to safeguard and promote the welfare of children whom it is looking after and to make such use of services available for children cared for by their own parents as appear reasonable (Article 26(1)).

Consultation

Before making any decision, an HSS Trust must, as far as practicable, ascertain the wishes and feelings of the child, his parents or other people with parental responsibility, and any other person with a reasonable interest. The Trust must give due regard to those wishes and feelings, having regard to the child’s age and understanding, and the child’ religious persuasion, racial origin, and cultural and linguistic background (Article 26(2) and (3)).

Placement of looked after children

An HSS Trust should, if practicable and consistent with a child’s welfare, ensure that they are placed near home, and that siblings are accommodated together, and that where a child is disabled, the accommodation is suitable to the child’s particular needs (Article 27(8) and (9)).

The Trust should if practicable and consistent with the child’s welfare, make arrangements to Before making any decision, an HSS Trust must, as far as practicable, ascertain the wishes and feelings of the child, his parents or other people with parental responsibility, and any other person with a reasonable interest. The Trust must give due regard to those wishes and feelings, having regard to the child’s age and understanding, and the child’ religious persuasion, racial origin, and cultural and linguistic background (Article 26(2) and (3)).

Foster care for looked after children

Children may be placed with foster carers, who may include the child’s relatives. Before a child can be placed with any foster carers, they must have been approved by a Trust and the approval must be reviewed regularly. An agreement must be signed by the foster carers and HSS Trust in respect of each child placed. The child must be visited at specific intervals which vary according to the length of time a child has been in the placement. The Trust must keep records of foster children and of visits to foster homes.

Contact for looked after children

An HSS Trust has a duty to promote contact between children it is looking after and their parents, relatives, friends and other people connected with them, so far as is practicable and consistent with the children’s welfare (Article 29). The Trust has power to help with the cost of visits to or by the child in cases of hardship (Article 30).
When a child is in care (i.e subject to a care order or interim care order), an HSS Trust must allow the child reasonable contact with his or her parents or guardian and anyone previously providing care for him or her under a court order, until and unless an order to the contrary is made (Article 53(1)). Any of the above persons, or the HSS Trust or the child, or anyone with the court’s leave, may apply to the court for an order defining the contact that is to take place (Article 53(2) and (3)).

An HSS Trust may apply to the court for an order for permission to refuse contact between the child and a parent, guardian or previous carer. In an emergency, to safeguard the child’s welfare, the Trust may refuse contact for a maximum of 7 days without an Article 53(4) order (Article 53(4) and (6)).

Departmental Guidance

Implementation of the Children Order required the production of a very considerable body of supporting Regulations and Guidance. This body of work provides further information and advice on the Order.

The Children Order series of Regulations consists of the following:

Volume 1: Court Orders and Other Legal Issues
Volume 2: Family Support, Child Minding and Day Care
Volume 3: Family Placements and Private Fostering
Volume 4: Residential Care
Volume 5: Children with a Disability
Volume 6: This guidance has been superseded
Volume 7: Schools Accommodating Children

“Co-operating to Safeguard Children” – This guidance is intended to assist Area Child Protection Committees develop strategies, policies and procedures to safeguard children who are assessed to be at risk of significant harm. It fully replaces the guidance previously provided in “Co-operating to Protect Children”, Volume 6 of the Children Order Regulations and Guidance.

Independent Fostering Agencies (28 February 2002)

This guidance was issued to HSS Boards and Trusts to provide them with guidelines on how to deal with independent fostering agencies. Attached to the circular was a good practice guide “Working with Independent Fostering Agencies” produced by the British Agencies for Adoption and Fostering (BAAF). The good practice guide provides advice on policies, practices and procedures to ensure that children’s needs are met as fully as possible when placed in foster care provided by independent fostering agencies.

Further information on the law in Northern Ireland can be found at http://www.dhsspsni.gov.uk/fostering-guidance
 


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