Legal Update: Preventative and early intervention services

Research published by the children's commissioner for England last year estimated that there are more than two million children in England living in families with substantial complex needs and that 1.6 million of these children have no established, recognised form of additional support. These include children whose lives are affected by parental drug and alcohol dependency, domestic abuse and poor mental health. For some, if early help is not offered or taken up, these difficulties escalate, family circumstances deteriorate and children are more at risk of suffering significant harm.

The provision of "early intervention" services has long been recognised by those working with children and young people as a way of helping prevent problems escalating to a point where they require more costly interventions, such as being taken into care.

From parenting classes to substance misuse prevention, these programmes form a key part of local support to children and families, but provision is inconsistent across the country, and has suffered in light of financial pressures and increasing demand for "late" or "crisis" intervention services. Reduced funding has forced local authorities to make significant cuts to preventative and early intervention services.

Duties to children in need

Children's services are expected to provide help and support to children in their area as part of a continuum involving early help services, section 17 of the Children Act 1989 support for more complex needs, and action under section 47 if there is reasonable cause to suspect that a child is suffering or likely to suffer significant harm.

Under section 17 of the Children Act 1989, a child will be considered in need if:

• They are unlikely to achieve or maintain or to have the opportunity to achieve or maintain a reasonable standard of health or development without provision of services from the local authority;
• Their health or development is likely to be significantly impaired, or further impaired, without the provision of services from the local authority;
• They have a disability.

It is the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need; and "so far as is reasonably consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs". A "child in need" assessment under section 17 should identify the needs of the child.

Statutory guidance on Working Together to Safeguard Children: A Guide to Inter-Agency Working to Safeguard and Promote the Welfare of Children states that "early help is more effective in promoting the welfare of children than reacting later", and instructs local authorities to have measures in place to identify those families who would benefit from early help; determine what form of early help they would benefit from; and provide evidence-based early help as appropriate.

Early help duty

In her 2011 review of child protection, Eileen Munro recommended that the government place a duty on local authorities and statutory partners to secure the sufficient provision of local early help services for children young people and families. This recommendation was echoed in the recent all-party parliamentary group for children's report Storing up Trouble which called on the Department for Education to "consult on how to introduce Munro's proposal for a legal duty on local authorities and statutory partners to provide early help to children, young people and their families, including putting a definition of ‘early help' in statute". In 2015, Ofsted recommended the government "strengthen and specify the roles and responsibilities of local authorities and statutory partners, setting out that they must secure sufficient provision of local early help services for children, young people and families".

‘Oppressive behaviour' found to secure mother's care order consent

G (Children: Fair Hearing), Re [2019] EWCA Civ 126

This case in the Court of Appeal found that a mother's consent to a care order had been secured by "oppressive behaviour" and warned that judges must be careful not to put unreasonable pressure on parties to care proceedings.

The case concerned two young children, who were made the subject of police protection orders after a confrontation between the parents had resulted in the mother's arrest. When the mother then withdrew her consent to the children being accommodated the local authority issued care proceedings. The application for interim care orders was heard the next day, when the police protection orders were due to expire. There was no written evidence from either parent and the mother met her counsel for the first time at court. The judge made unopposed interim orders for two young children.

After the hearing finished, the mother "became distressed" at what had occurred and claimed that she had been subject to "improper judicial pressure". For example, although the mother's counsel told the judge his instructions were to contest the order, the judge said: "…if it is heard today I shall certainly make findings that your client will be stuck with", the implication being that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. When the mother's counsel attempted to put a small part of his client's factual case, he was "met with derision", the Court of Appeal judgment stated.

As explained by Lord Justice Peter Jackson, "judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter".

The court ruled that the mother's "consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements". The case highlights that caution is required before judges making reference to the significance of conclusions drawn at the interim stage "as such comments may appear to the parents to be a form of pressure".

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