1. Basics
Just the
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The United Nations Convention on
the Rights of the Child 1989 and
the Protection Rights of Children

2. Learning Aims
• To point out key Articles of the UNCRC that
relate to the ‘protection’ of children.
• To identify domestic legislation and policy that
promotes children’s right to protection from
abuse.
• To analyse policy definitions of abuse in terms
of their utility and limitations.
• To critique the scope of domestic legislation
and its limitations in safeguarding children.

3. Fortin (2009:550)
• The state assumes that, because parents
brought their children into the world, they will
care for them and protect them from harm:
Indeed, it trusts them to do so.
• However, The Committee on the Rights of The
Child indicate deep concern with the UK’s
record of child death and rising levels of
neglect.

4. The Children Act 1989
• Is the most important piece of legislation and
represents the UK’s attempt at realising the
Articles of the UNCRC 1989
• Adopts an uneasy compromise between
emphasising parents’ rights to autonomy and
privacy and fulfilling children’s rights to
protection. (Fortin, 2009: 553)

5. Which Articles of the UNCRC 1989
relate to protection?
• Article 4: Overarching requirement of State’s to
protect children and provide services.
• Article 19: Right to be protected from abuse.
• Article 20: Children deprived of family
environment.
• Article 21: Adoption
• Article 34: Sexual Exploitation
• Article 37: Detention and Punishment
• Article 40: Juvenile Justice

6. Which Articles of Domestic Law and
Policy are Relevant?
• The Children Act 1989 s.17
• The Children Act 1989 s.47
• The Children Act 1989 s.20
• The Children Act 1989 s.31
• The Adoption and Children Act 2002 s.120
• The Children Act 2004 s.11
• The Children Act 2004 s.53
• The Children Act 2004 s.58
• Working Together 2013

7. Article 4
• This involves assessing their social services,
legal, health and educational systems, as well
as levels of funding for these services.
• They must help families protect children’s
rights and create an environment where they
can grow and reach their potential.

8. Article 19
• Children have the right to be protected from
being hurt and mistreated, physically or
mentally.
• Governments should ensure that children are
properly cared for and protect them from
violence, abuse and neglect by their parents,
or anyone else who looks after them.

9. Article 19 (smacking)
• However any form of discipline involving violence
is unacceptable. There are ways to discipline
children that are effective in helping children
learn about family and social expectations.
• Never-the-Less, ‘Smacking’ of children is not
unlawful in England.
• Parents retain a right under section 58 of The
Children Act 2004 , to use the defence of
‘Reasonable Chastisement’ against any charge of
physical abuse amounting to common assault.

10. Article 20 (Children deprived of family
environment):
Children who cannot be looked
after by their own family have a
right to special care and must be
looked after properly, by people
who respect their ethnic group,
religion, culture and language.

11. Article 21 (Adoption):
• Children have the right to care and protection
if they are adopted or in foster care.
• The first concern must be what is best for
them.
• The same rules should apply whether they are
adopted in the country where they were born,
or if they are taken to live in another country.

12. There are two main routes into the
looked after children system
• Being accommodated under
section 20 of the Children Act
1989 or
• Being made the subject of a
care order under section 31 of
the Children Act 1989

13. Section 20: Voluntary Accommodation
• Under section 20 of the Children Act 1989,
children and young people can be
accommodated with the consent of those
with parental responsibility.
• If the young person is 16 or 17 years old, they
do not need the consent of those with
parental responsibility in order to be
accommodated by the local authority.

14. Regard for a Child’s Views
If a child or young person is being
accommodated by the local authority, then the
local authority MUST have regard to his or her
views.
Consistent with:
UNCRC 1989 A:12 Respect for the views of the
child
UNCRC A:5 Evolving Capacities

15. Section 31 of the Children Act 1989
(Care Order)
Under section 31 of the Children Act
1989, the local authority or any
authorised person can apply to the
court for a child or young person to
become the subject of a care order.

16. Care orders can only be made by the
court.
• The court will only make a care order if it
believes that it is better for the child or young
person than not making an order.
• A care order can only be made on young
people below the age of 17 and cannot be
made on a young person who is 16 years old
and married.

17. UNCRC Article 34 (Sexual exploitation):
Governments should protect children
from all forms of sexual exploitation
and abuse. This provision in the
Convention is augmented by the
Optional Protocol on the sale of
children, child prostitution and child
pornography.

18. Article 37 (Detention and punishment)
(Tasers?)
No one is allowed to punish children in a cruel
or harmful way. Children who break the law
should not be treated cruelly. They should not
be put in prison with adults, should be able to
keep in contact with their families, and should
not be sentenced to death or life imprisonment
without possibility of release.

19. Article 40 (Juvenile justice) Doli
Incapax
Children who are accused of breaking the law
have the right to legal help and fair treatment in
a justice system that respects their rights.
Governments are required to set a minimum age
below which children cannot be held criminally
responsible and to provide minimum guarantees
for the fairness and quick resolution of judicial
or alternative proceedings.

20. To make a care order, the court must
be satisfied:
a) That the child concerned is suffering or is likely
to suffer significant harm.
b) And that the harm, or likelihood of harm is
attributable to:
c) The care given to the child, or
d) Likely to be given to him if the order were not
made, or
e) The care not being reasonable or if
f) The child is beyond parental control

21. Walker (2011:66)
Concludes that, “Children’s rights
are subsumed into a more
powerful agenda, in which they are
‘safeguarded’ in order to ensure
they do not cause social problems
for future generations”.

22. Child Protection to Safeguarding
• The term ‘safeguarding’ first began to emerge
around 2003 and the Every Child Matters
agenda.
• It marked a shift in expectation in the type of
language professionals were expected to use.
• Away from ‘child protection’ towards the use
of ‘safeguarding children’ and ‘promoting
their welfare’

23. The Children Act 2004
By April 2005 Local Authorities
must establish Local
Safeguarding Children’s Boards
to replace Area Child Protection
Committees with wider powers
and responsibilities.

24. Significant Harm
The concept was introduced by The Children Act
1989.
The legislation does not set absolute criteria for
significant harm, guidance states that in reaching
decisions, consideration should be given to:
• The degree and extent of harm
• Duration of harm
• Frequency of harm
• Extent of premeditation
• Presence or degree of threat, coercion, sadism
and bizarre or unusual elements

25. Working Together to safeguard
Children
• Guidance first published in 1991, the current
version is 2013.
• Four categories of abuse describing different
kinds of abuse that may constitute ‘significant
harm’

26. Section 120 Adoption and Children Act
2002 (Domestic Violence)
Extends the legal definition of ‘significant
harm' to children to include the harm
caused by witnessing or overhearing
abuse of another, especially in a context of
domestic violence.

27. Section 53 The Children Act 2004
• Amended s.17 (Children in Need of Support) &
s.47 (Children at Risk of Significant Harm) of
The Children Act 1989 to require that before
intervening ‘the wishes and feelings of the
child should be ascertained as far as
reasonable, and given due consideration’.

28. Walker (2011): 2 Problems
• Comparisons: How do social workers’
expectations of ‘normality’ impact upon their
assessments i.e. ‘preventing the child from
participating in normal social interaction’
(Emotional Abuse).
• Parental final say: Without the ‘diagnosis’ of
‘significant harm’ parents may reject support,
whether or not the child would benefit or
indeed requests the support themselves.

29. Conclusions
• The Children Act 1989 sets out in the main the
states’ duties to protect and provide services
for children.
• These duties have been augmented by The
Children Act 2004; The Adoption and Children
Act 2002.
• The guidance in determining abuse is Working
Together… 2013

30. Conclusions
• What constitutes ‘child abuse’ is a contested term.
• There are specific difficulties that relate to the detection of the four
different kinds of abuse.
• Each definition of abuse is nuanced by individual and contextual
factors
• Practitioners have to balance
• Parental rights of autonomy,
• Children’s rights of autonomy,
• Children’s interest rights,
• The child’s developmental rights
• The child’s right to be heard
• Awareness of the scope and limitation of statutory and policy
mandates to intervene.