Safeguarding

The primary statutory role of safeguarding the welfare of children in Wales lies with local authorities:

  • Section 28 of the Children Act 2004 imposes a duty on local authorities and other bodies such as the local police body, local health boards, NHS Trusts, probation boards and youth offending teams to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children.
  • Under Part 7 of the Social Services and Well-being (Wales) Act 2014 (the 2014 Act) local authorities must establish Safeguarding Children Boards comprised of representatives from local authorities, the local police body, local health board, NHS Trust, probation board, youth offending team and others.

Section 127 of the 2014 Act enables applications to be made to magistrates' courts for adult protection and support orders. Applications for such orders may be made by an officer of a local authority who has been authorised by a local authority to perform functions under that section.

Safeguarding children

The protection and well-being of children is a matter devolved to Senedd Cymru. Family law and proceedings are exceptions from the Senedd’s competence, apart from:

  • welfare advice to courts, representation and provision of information, advice and other support to children ordinarily resident in Wales and their families, and
  • Welsh Family Proceedings Officers (see Government of Wales Act 2006 Schedule 7 paragraph 15). 

The primary statutory role of safeguarding the welfare of children in Wales lies with local authorities. 

This role involves a wide range of duties including:

  • assessing and meeting the care and support needs of children  (Parts 3 and 4 of the 2014 Act)
  • the provision of accommodation for children on a voluntary basis where either no person has parental responsibility for them, they are lost or abandoned or the person who has been caring for them is prevented from providing him with suitable accommodation or care- section 76 of the 2014 Act
  • duties in relation to the placement of children looked after by a local authority and the review of those placements - Part 6 of the 2014 Act 
  • duties in respect of  private fostering arrangements – section 67 of the Children Act 1989 and the Children (Private Arrangements for Fostering) (Wales) Regulations 2006
  • visiting looked after and former looked after children (section 98 of the 2014 Act)
  • provision for care leavers - sections 105 to 115 of the 2014 Act
  • Parts 4 and 5 of the Children Act 1989 set out the circumstances in which a local authority must investigate when it suspects that a child is suffering or is likely to suffer significant harm. The steps which a local authority can take to intervene by making an application to a Family Court and the criteria used by courts in determining such applications are also set out – for example, for emergency protection orders, care orders or supervision orders.

Independent Reviewing Officers monitor the performance by the local authority of their functions in relation to a child’s case – section 25A of the Children Act 1989 and the Review of Children's Cases (Wales) Regulations 2007.

Local authorities in Wales are also under a duty to make arrangements to promote co-operation with a range of relevant partners (such as the local police body, local health board and NHS Trust) in relation to protection of children from harm and neglect and a range of other well-being related matters.

Section 28 of Children Act 2004 (the 2004 Act) imposes a duty on local authorities and other bodies such as the local police body, local health boards, NHS Trusts, probation boards and youth offending teams to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children.

Under Part 7 of the 2014 Act local authorities must establish Safeguarding Children Boards comprised of representatives from local authorities, the local police body, local health board, NHS Trust, probation board, youth offending team and others. 

Part 4 of the 2004 Act gives  the Welsh Ministers’ functions in respect of the exercise of Cafcass functions in Wales in relation to family proceedings. These functions are carried out by CAFCASS Cymru – the Children and Family Court Advisory Support Service in Wales and include the provision of Welsh Family Proceedings Officers to assist the court in private and public law family proceedings, in respect of which the welfare of children ordinarily resident in Wales is in question.

In family proceedings with an international element, Council Regulation 2001/2003 (Brussels II revised) may be relevant.

Where there are cross – border issues relating to safeguarding a child’s welfare, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ("the 1996 Convention”) is likely to come into play. This was ratified by the UK on 1 November 2012. It contains a range of co-operation provisions to cover the handling of cross – border cases where a child’s welfare is in issue. The Welsh Ministers are the Central Authority for the 1996 Convention pursuant to the Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010. The 1996 Convention may come into play alongside Council Regulation 2201/2003 (Brussels II revised) and/or Hague Convention on Civil Aspects of International Child Abduction 1980.

Children

The Children Act 1989 is the principal piece of legislation which makes provision about the safeguarding and promotion of the welfare of children. 

Part III of that no longer applies in Wales and has been replaced by provisions in the 2014 Act, particularly Parts 3 and 4 (assessing and meeting needs for care and support) and Part 6 (looked after and accommodated children).

Section 47(1) of the Children Act 1989 contains duties which require a local authority to make, or cause to be made, such enquiries as it considers necessary to enable it to decide whether it should take any action to safeguard or promote the child’s welfare.

Such action might result in a child becoming “looked after” by a local authority, either as a result of a local authority providing accommodation for the child (in accordance with section 76 of the 2014 Act) or following the making of a care order by the court (in accordance with section 31 of the Children Act 1989).

The Children Act 2004 builds on and strengthens the framework set out in the Children Act 1989 in a number of ways. There are a number of provisions in the Children Act 2004 which relate directly or indirectly to agencies’ responsibilities to safeguard and promote the welfare of children:

  • Section 25 of the Children Act 2004 (co-operation to improve well-being: Wales) has been amended by the 2014 Act;
  • Section 26 of the Children Act 2004 (children and young people’s plans: Wales) has been repealed by the Well-being of Future Generations (Wales) Act 2015 and replaced by the duty on public service boards to prepare and publish assessments of local well-being and local well-being plans
  • Sections 31 to 34 of the Children Act 2004 (Local Safeguarding Children Boards: Wales) have been repealed and replaced by the provisions in section 134 to 140 of the 2014 Act (Safeguarding Boards).

Safeguarding boards 

Regulations made under section 134 of the 2014 Act specify the areas in Wales where there are to be Safeguarding Children Boards and Safeguarding Adults Boards (“Safeguarding Board areas”). These Boards (collectively referred to as “Safeguarding Boards”) have partners set out in section 134(2), all of whom have an interest in safeguarding children and adults.

The Safeguarding Boards (General) Regulations 2015 specify who is the lead partner for a Safeguarding Adults Board and who is the lead partner for a Safeguarding Children Board. The lead partners are under a duty to establish Safeguarding Boards in their respective Safeguarding Board areas which are to include representatives of its partners.

Section 134(9) of the 2014 Act provides that a Safeguarding Board may include representatives of other persons or bodies that the Board considers should be represented and who are involved in activities or have functions relating to children or adults in the Safeguarding Board area in question.

A Safeguarding Board must publish an annual plan setting out its programme of work for the year ahead and must, before 31 July each year, publish a report on how it has exercised its functions in the preceding financial year.

Section 135(1) of the 2014 Act specifies the objectives of a Safeguarding Children Board, which are to protect children in its area who are experiencing or are at risk of abuse, neglect or other harm and to prevent children in its area from becoming at risk of abuse, neglect or other harm.

Section 135(2) of the 2014 Act specifies the objectives of a Safeguarding Adults Board, which are to protect adults in its area who have needs for care and support and who are experiencing, or are at risk of, abuse or neglect, and also to prevent adults with needs for care and support from becoming at risk of abuse or neglect.

Regulations 3 and 4 of the Safeguarding Boards (Functions and Procedures) (Wales) Regulations 2015 (the Functions and Procedures Regulations) make further provision about the functions of Safeguarding Boards and regulation 5 makes provision about the procedures that Safeguarding Boards must adopt.  

Regulation 6 requires that at least once a year each Safeguarding Board must give children or adults (as relevant) the opportunity to participate in an event at which they will have an opportunity to participate in the Board’s work.

A Safeguarding Board must undertake a practice review in any case where the circumstances satisfy the criteria in Functions and Procedures Regulations. The Board is also required to undertake audits, case reviews, thematic reviews and investigations, and ensure that they are effectively managed, supported and resourced. The Board is also required to monitor the extent to which any recommendations made by such reviews, audits and investigations are being met and what has changed as a result.

Criteria for child practice and adult practice reviews are set out in regulation 4 of the Functions and Procedures Regulations.

Statutory guidance in relation to Safeguarding Boards has been issued under the powers in Part 7 of the 2014 Act.

Adult protection and support orders 

Section 127 of the 2014 Act enables an application to be made to magistrates' courts for an adult protection and support order. An order under this provision may be sought in relation to a person living in any premises within the area of the appropriate local authority. The purpose of such order is to enable an authorised officer of the local authority to speak in private to a person suspected of being an adult at risk in order to establish whether he or she can make decisions freely, to assess whether the person is an adult at risk and to establish whether any action should be taken, and if so, what action.

Applications for such orders may be made by an authorised officer who is an individual authorised by the appropriate local authority to perform functions under this section. Section 127(9) of the 2014 Act enables the Welsh Ministers in regulations to place restrictions on who may be authorised under this section, for example, by requiring particular qualifications or experience - see regulation 3 of the Adult Protection and Support Orders (Authorised Officer) (Wales) Regulations 2015.

When an adult protection and support order is in force, the authorised officer, a police constable (if considered necessary) and any other person specified in the order has the power to enter the premises where the suspected adult at risk is living, for the purposes of the order.  The constable may use reasonable force (for example, to gain access to the premises where the adult at risk lives) if such force is necessary to enable the purposes of the order to be fulfilled.

Section 127(4) of the 2014 Act provides that a justice of the peace may only make  an adult protection and support order if satisfied that –

(a) the authorised officer has reasonable cause to suspect that a person is an adult at risk,
(b) it is necessary for the authorised officer to gain access to the person in order properly to assess whether the person is an adult at risk and to make a decision as required by section 126(2) on what, if any, action should be taken,
(c) making an order is necessary in order to fulfil the purposes set out in subsection (2), and
(d) exercising the power of entry conferred by the order will not result in the person being at greater risk of abuse or neglect. 

Statutory guidance in relation to Adult Protection and Support Orders has been issued under the powers in Part 7 the 2014 Act.

Duties to report 

Section 128 of the 2014 Act requires a 'relevant partner' of a local authority (as defined in section 162) to inform the authority if they suspect a person in its area is an adult at risk (or if the person is in the area of another local authority, to inform that other authority). It also requires a local authority to inform another local authority (in Wales or in England) if an adult they suspect to be at risk is living or moving to the area of that other authority.

Section 130 of the 2014 Act requires a 'relevant partner' of a local authority (a youth offending team for any area of which falls within the area of the local authority or a relevant partner as defined in section 162) to inform the authority if they suspect that a child in its area is a child at risk (or if the child is in the area of another local authority, to inform that other authority).
A child at risk is one who is experiencing or is at risk of abuse, neglect or other kinds of harm, and has care and support needs. Section 130 also requires a local authority to inform another local authority (in Wales or in England) if a child they suspect to be at risk is living or moving to the area of that other authority. 

Duties to investigate

 Concerns about a child who is suffering or is likely to suffer significant harm may arise in the process of providing services to a child or family, or may result from the local authority receiving information about a child who lives, or is found in its area.

If a local authority:

  • is aware or is informed that a child who lives, or is found, in their area is the subject of an emergency protection order or is in police protection, or
  • it has reasonable cause to suspect that a child who lives, or is found in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as it considers necessary to enable it to decide whether it should take any action to safeguard or promote the child’s welfare. Such action could result in the local authority seeking to secure the agreement of the child’s placement in local authority arranged accommodation (in accordance with section 76 of the 2014 Act) or the local authority seeking to secure a care order (under section 31 of the Children Act 1989).

"Harm" is defined in section 31(9) of the Children Act 1989 as 

"ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another". 

Harm is therefore broader than physical violence alone and includes sexual abuse and forms of ill-treatment which are not physical. Any harm a child suffers because a parent is being harassed or intimidated is also caught by the definition of "harm".

Section 126 of the 2014 Act places a duty on a local authority to carry out an investigation where it suspects that a person is an “adult at risk”.

An adult at risk is one who is experiencing or at risk of abuse or neglect, has needs for care and support and is unable to protect himself or herself against the abuse or neglect (or the risk of abuse or neglect) as a result of those needs.

“Abuse” means physical, sexual, psychological, emotional or financial abuse (and includes abuse taking place in any setting, whether in a private dwelling, an institution or any other place), and “financial abuse” includes—

  • (a) having money or other property stolen;
  • (b) being defrauded;
  • (c) being put under pressure in relation to money or other property;
  • (d) having money or other property misused; 

“Neglect” means a failure to meet a person's basic physical, emotional, social or psychological needs, which is likely to result in an impairment of the person's well-being (for example, an impairment of the person's health or, in the case of a child, an impairment of the child's development).

The local authority must make whatever enquiries it thinks necessary to help it decide whether action should be taken. Such action could include the provision of care and support under the 2014 Act or taking steps to protect the adult under other legislation, such as the Mental Health Act 1983 or the Mental Capacity Act 2005.

If the local authority decides that action should be taken, it is expected that it will ensure that an action plan is drawn up. Regulations made under section 54 of the 2014 Act (care and support plans) must provide for the conclusions of the local authority's enquiries (for example, its decision to take the action recorded in the action plan) to be recorded as part of the adult's care and support plan.