Recovery Order, Abduction of Child in Care, Child Abduction Act

Legal Proceedings Manual

Legal Proceedings – Chapter 17: Recovery Order, Abduction of Child in Care, Child Abduction Act& Chapter 18: Removal of a Child from the Court’s Jurisdiction

Recovery Order, Abduction of Child in Care, Child Abduction Act

Introduction

Recovery Order

Who May Apply

Effects of a Recovery Order

Refuges for Children at Risk

Factors to be considered when children run away

Abduction of a Child in Care

When to consider the use of Section 49

The Child Abduction Act 1984 Section 2

Procedure for Social Workers and Police in Serving Child Abduction Letters

Removal of a Child from the Court’s Jurisdiction

Introduction

Removing a Child in Care from the UK

Circumstances where the Local Authority may wish to remove a child in care from the UK for more than one month

Approval for a child in care to live outside England and Wales

Grounds for the court giving its approval

Circumstances in which the local authority may wish to make application

Recovery Order, Abduction of Child in Care, Child Abduction Act 1984

Introduction

The Recovery Order is governed by Section 50 of The Children Act 1989, and Abduction of a child in care is at Section 49 of the Act.

Both section 50 and section 49 are concerned with situations where children who are the subjects of care orders, emergency protection orders or are in Police Protection have absconded or been abducted from care.

The Child Abduction Act 1984 Section 2 is concerned not only with children who are the subjects of care orders, emergency protection orders or in Police Protection but also with children who are looked after or are living at home with their parents/carers. It covers situations where children have been encouraged to stay away, or have been taken away from the person who has the lawful control of them.

Recovery Order

A recovery order can only be made in respect of a child who is the subject of a care order, an emergency protection order, or is in police protection, where there is reason to believe that ;-

the child has been unlawfully taken from the care of the responsible person

has run away, or

is staying away or

is missing.

The responsible person means any person who for the time being has care of him by virtue of the care order, the emergency protection order or Police Protection.

The application for a recovery order can be made either ex parte or inter parties. However, where a child is subject to a care order and the application is made inter parties, the child should receive at least one day’s notice of the hearing.

Section 50(1) states that a recovery order can be made where it appears to the court that there is reason to believe that a child to whom this section applies:

has been unlawfully taken away or is being unlawfully kept away from the responsible person

has run away or is staying away from the responsible person; or

is missing

Who May Apply

Only a person who has parental responsibility because of a care order, or an emergency protection order, which is usually the local authority, or where the child is in police protection, the designated police officer, may apply for a recovery order.

The application must be made in the Family Proceedings Court unless there are other proceedings pending.

Effects of a Recovery Order

Under Section 50(3) a Recovery Order has the following effects. It:

operates as a direction to any person who is in a position to do so to produce the child to any authorised person

authorises the removal of the child by any authorised person

Requires any person who has information as to the child’s whereabouts to disclose that information, if asked to do so, to a constable or an officer of the court

authorises a constable to enter any premises specified in the order and search for the child, using reasonable force if necessary.

Under Section 50 (9) a person is guilty of an offence if he intentionally obstructs an authorised person from removing a child.

The authorised person means:

Any person specified by the court
Any constable
Any person who is authorised

(i)after the recovery order is made; and

(ii)by a person who has parental responsibility for the child by virtue of a care order or an emergency protection order

Refuges for Children at Risk

Section 51 of the Children Act 1989 makes provision for refuges for children who are on the run and appear to be at risk of harm.

The offences of keeping a child from the person who has the lawful control of him committed under Sections 49 and 50 of the Children Act and Section 2 of the Child Abduction Act do not apply to any person who is providing the child with a registered refuge.

A child may have run from the care of the local authority because he alleges that he has been abused and may feel safer in a refuge. The maximum time a child can remain continuously in a refuge is 14 days.

The person providing the refuge does not have to produce the child to any authorised person - The Refuges (Children’s Homes and Foster Placement) Regulations 1991).

However, he or she is under an obligation to inform the designated police officer as soon as possible and within 24 hours of the child’s control, of the child’s name, his last permanent address and provide a telephone number by which he/she can be contacted.

The designated police officer must inform the “responsible person” that the child is in a refuge and give them the name and telephone number of the person providing the refuge. The designated police officer may not disclose to any person the address of the place where the refuge is being provided.

The responsible person in the case of a child in care or accommodated under Section 20 will usually be the child’s allocated social worker.

Factors to be considered when children run away

When an application for a Recovery Order is made the court should appoint a Children’s Guardian unless it considers that the child’s welfare can be safeguarded without doing so. The Children’s Guardian will need to consider the reasons for the child running away. S/he will also need to consult with the local authority about their understanding of why the child is missing, the attitude of his family, any significant incidents that may have caused him to go missing, the local authority’s care plan, and the local authority’s placement plans for when the child returns.

This is explained in “A Guide for Guardian’s ad Litem in Public Law Proceedings Under The Children Act 1989”(page 109) which goes on to put forward possible reasons for a child running away or going missing, which will need to be considered by the social worker:

Dislike of the particular foster home or residential home
That they are being abused in a foster or residential home
That the child is linked into an abusive network which he wishes to rejoin, or pressure has been placed upon him to rejoin
That the child is in a placement which cannot meet his needs
Involvement in crime
Involvement in sexual exploitation (prostitution)
A desire to be independent
A desire to return to the care of his family or relatives.

Abduction of a Child in Care

This section applies to a child who is:

In care
The subject of an Emergency Protection Order; or
In Police Protection

Under Section 49(1) a person is guilty of an offence if they knowingly and without lawful authority or reasonable excuse:

Takes a child to whom this section applies away from the responsible person (Section 49(1)(a))
Keeps such a child away from the responsible person (Section 49(1)(b)) or;
Induces, assists or incites such a child to run away or stay away from the responsible person.

A person can be guilty of an offence under Section 49 whether or not a Recovery Order has been made.

Under Section 49(3) a person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine, or to both.

When to consider the use of Section 49

Consideration should be given to the use of Section 49 in situations where a child is persistently running away or going missing and the local authority knows to whom the child is running and believes the child to be at risk with that person.

The use of Section 49:

Places the onus upon the adult to ensure that the child returns to the care of the local authority

Confirms an offence is still being committed by that adult in circumstances where the child willingly goes with them.

Can be effective in situations where sexual exploitation is suspected. The local authority may know that a sexual relationship exists between a young woman in care and an older man but the police are unable to take action in respect of a sexual offence being committed as there is no complaint from the young woman.

Should be considered in these circumstances as well as The Child Abduction Act 1984 Section 2, as the police can then take action to prevent contact taking place.

It should be noted that under The Child Abduction Act, the offence committed in keeping a child away from the lawful control of a person who has the lawful control of the child is an arrestable offence. Section 49 does not give the police power to arrest the offender. Therefore, if the child is under 16 years of age it will be more effective to make use of the Child Abduction Act rather than Section 49.
In circumstances where the child is 16 years or over and therefore the Child Abduction Act cannot be used, Section 49 of The Children Act 1989 can still be utilised as it relates to children in care, or subject to an Emergency Protection Order or in Police Protection up to the age of 18 years.

There is a standard letter to be served upon the adult involved which is included at Appendix 6 of this manual. The procedure for serving the letters is explained in Section 13.3.1. below.

On some occasions a child in care will run away to a parent and will be kept away from the control of the local authority by the parent. In these situations Section 49 can be used.

The Child Abduction Act 1984 Section 2

The Child Abduction Act 1984 Section 2 states that an offence is committed by taking or detaining a child under 16, so as to remove or keep the child from the lawful control of someone who has, or is entitled to have, the lawful control of the child. The offence can be committed even where the child goes willingly with the abductor but does so as a result of an inducement. The inducement can be as simple as the provision of food, shelter or a bed for the night.

The child does not have to make a complaint against the adult. Instead the child’s parent, or in the case of a child in care or accommodated under Section 20, the local authority social worker or residential social worker can make a statement to the police stating that they do not give permission for the child to be with the particular adult involved.

The use of the Child Abduction Act should be considered in circumstances;-

where the child has been missing from home or care on a number of occasions

the parents/carers are concerned that the child is or could be at risk, especially at risk of sexual exploitation and no complaint is forthcoming from the child.

If the child is willing to make a complaint regarding sexual or physical abuse, then the child protection procedures should be followed.

The Child Abduction Act can be used more widely than Section 49 of The Children Act 1989 as it covers children in care, children accommodated under Section 20, and children living at home with their parents that are not subjects of any legal orders. It is useful as a deterrent to adults targeting children for sexual exploitation who are involving them in the “grooming process” which could lead on to their involvement in commercial sexual exploitation.

The use of the Child Abduction Act also puts the onus on the adult to send the child home, and therefore the adult is unable to claim as his/her defence the fact that the contact between them was instigated by the child.

Procedure for Social Workers and Police in Serving Child Abduction Letters

The following details relate to the circumstances when a child abduction letter can be served upon an individual and the strict guidelines that should be adhered to by police officers, social workers and other connected agencies in order to ensure a successful prosecution of the person concerned should they persist in their relationship with the child. These guidelines have been agreed by both the local Crown Prosecution Service and South Yorkshire Police. The use of the Child Abduction Act has been developed as a response to the difficulties encountered in getting a complaint from the child in cases of sexual exploitation.

The Child Abduction Act should be considered in circumstances:

Where the child has been missing from home on several occasions and there are concerns that a sexually exploitative relationship exists with an adult not connected to the child.

In circumstances where a children has been “befriended” by a Schedule 1 offender and is going missing from home or care to be with that offender. In the majority of cases a sexual motivation will be suspected.

In cases where a sexual motivation is not suspected, advice from CPS on the advisability of using Child Abduction legislation should be sought

In respect of the guidelines;-

The parents of the child or the local authority in the case of a child in care must either know or suspect that the child is being encouraged to remain away from home or care by an adult who can be identified by name and/or address.

If this information is not available a description or other means of tracing the adult would assist in identification, for example, car registration number, land line or mobile telephone number.

The usual practice of either a social worker or police officer speaking to the child to ascertain whether an allegation and/or formal complaint of sexual or physical abuse is forthcoming should be continued. If the child does allege abuse then the child protection procedures should be implemented.

If the child does not make an allegation or is not willing to make a formal complaint to the police and attempts by parents or the local authority have failed to stop the adult encouraging the child from staying away from home or care then use of the Child Abduction Act should be considered.

A strategy meeting should be convened and a decision reached between Children and Young Peoples Service, Police (usually an officer from Escafeld House), the child’s parents and other agencies as appropriate, whether child abduction letters are to be served.

In the case of a child living with her/his parents they have to be willing to make a statement to the police to the effect that they do not give their permission for their child to be with the adult in question. They must also be prepared to give evidence in court if necessary.

In the case of a child in care or accommodated by the local authority, the relevant social worker would be asked to make this statement. At the strategy meeting a decision should be made regarding whether police officers or social workers are to serve the letters.

Following the agreement at the strategy meeting to use the Child Abduction legislation, a statement from the parent or person with the lawful control of the child should be taken by a police officer. This will be taken by a district police officer rather than an officer from Escafeld House. The statement will indicate the nature of the problem, the difficulties encountered in preventing the relationship developing, other associated problems, for example acquiring gifts/money, the age of the child and the legal status of the child. Where the child is accommodated by the local authority but not subject to a Care Order gaining confirmation of the parents’ support for the proposed action should be considered.

Two copies of the child abduction letter should be prepared completing relevant details. One copy should be handed personally to the adult causing the concern and this person should countersign the second copy to acknowledge receipt. The time, date and location where the letter was served should be noted. If served by social workers this should be done in pairs for corroboration. The time/date of serving the letter should be passed to the investigating police officer to provide a reference point and ensure that relevant intelligence reports have been created.
Posting the child abduction letter to the persons last known address is unacceptable as there would not be an exact time/date or proof of personal receipt.
Following the notice being served, it is important that parents, social workers, residential social workers, and foster carers (whoever has the lawful control of the child in question) detail the episodes of the child going missing from home or care and report them to the local police station. It is imperative that this process is continued to ensure that relevant address checks are made by the police, thus increasing the potential for locating the child with the adult.

If the adult persists in encouraging the child to remain away from home or care the police can then take action against him/her in the form of prosecution.