The relationship between the
legal system and child
As we have seen:
• The law governs the relationship between legal
individuals; these are known as ‘Civil Cases’. The courts
decide these cases on the basis of what probably
happened between these legal individuals: ‘The
balance of probability’.
• Events that a deemed to be so serious that they are a
grave threat to the ‘social order’ are classified as
‘Criminal Cases’. In the UK, the figurehead of this social
order is The Crown represented as ‘R’. The courts have
to have a great deal of confidence in terms of what
happened regarding the offence. ‘Beyond reasonable
What counts as a legal individual?
• Health and Local authorities and their officers
are classified as ‘legal individuals’ even though
they are organisations rather than single
The legal remedies for abuse of children can be
subject to civil and/or criminal proceedings.
Most often these proceedings will be civil.
The Local Authority (as a legal person) brings the
case to court on behalf of the victim child.
However, the respondent in the case is the
child’s name usually anonymised to an initial:
A Local Authority v NL 
The Children Act 1989 key point 1
In civil law, child welfare is the responsibility of
local authorities and family courts. Under
section 47 of the Children Act 1989, local
authorities are charged with the “duty to
investigate … if they have reasonable cause to
suspect that a child who lives, or is found, in
their area is suffering, or is likely to suffer,
The Children Act 1989 & Adoption of
Children Act 2002: key point 2
• Harm, under section 31(9) of the Children Act
1989 is defined as "ill-treatment or the
impairment of health or development". Section
120 of the Adoption and Children Act 2002 added
to this definition: "… including for example,
impairment suffered from seeing or hearing the
ill-treatment of another". To decide whether
harm is significant, the health and development
of the child is "compared with that which could
reasonably be expected of a similar child"
(Children Act 1989).
The Children Act 1989: key point 3
Under Section 17 (10) of the Children Act 1989, a child is
a Child in Need if:
a) he is unlikely to achieve or maintain, or to have the
opportunity of achieving or maintaining, a reasonable
standard of health or development without the
provision for him of services by a local authority
under this Part;
b) his health or development is likely to be significantly
impaired, or further impaired, without the provision
for him of such services; or
c) he is disabled.
Principles of The Children Act 1989
• the welfare of children must be the paramount consideration when the
courts are making decisions about them;
• the concept of parental responsibility has replaced that of parental rights;
• children have the ability to be parties, separate from their parents, in
• local authorities are charged with duties to identify children in need
and to safeguard and promote their welfare;
• certain duties and powers are conferred upon local authorities to
provide services for children and families;
• a checklist of factors must be considered by the courts before reaching
• orders under this Act should notbe made unless it can be shown that
this is better for the child than not making an order;
• delayin deciding questions concerning children is likely to prejudice
In criminal law
It is the police and the criminal courts (The
Crown; ‘R’) who prosecute offenders and protect
the public, including children. Home Office
Circular 16/2005 lists criminal offences against
children. It includes the offence of cruelty to
children, which was first established in section 1
of the Children and Young Persons Act 1933:
• “If any person who has attained the age of
sixteen years and has the custody, charge, or
care of any child or young person under that
age, wilfully assaults, ill-treats, neglects,
abandons, or exposes him, or causes or
procures him to be assaulted, ill-treated,
neglected, abandoned, or exposed, in a
manner likely to cause him unnecessary
suffering or injury to health…that person shall
be guilty of a misdemeanour…”.
In order to establish guilt in a criminal
case, the prosecution must satisfy 2
• Mens Rea (Guilty Mind) • Actus Reus (the criminal
• Abuse against children can be dealt with in the civil
courts and also the criminal courts.
• The Children Act 1989 continues to be the most
important provision regarding children and families.
• The Adoption of Children Act 2002 and Children Act
2004 expanded this provision.
• Key concepts include ‘s.47 duty to investigate’,
‘significant harm’, ‘child in need’, and the overarching
principles, esp. paramountcy.
• The criminal law may prosecute individuals found
guilty of child abuse under s.1 Children and Young
People’s Act 1933.