Appendix 6: Legal Matters

6.1 Children Act 1989

Section 17

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part):

  • to safeguard and promote the welfare of children within their area who are in need; and
  • so far as is 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.

For the purposes of this Part a child shall be taken to be in need if :

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;

  • His health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
  • He is disabled, and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 27

Where it appears to a Local Authority that any authority or other person mentioned in subsection could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority or person, specifying the action in question.

An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

The persons are:

  • any Local Authority,
  • any local Education Authority;
  • any local Housing Authority;
  • any Health Authority; and
  • any person authorised by the Secretary of State for the purposes of this section.

Every Local Authority shall assist any local education authority with the provision of services for any child within the local authority's area who has special educational needs.

Section 47

Where a Local Authority:

  • are 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
  • have 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 they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.

6.2 Children Act 2004

The Children Act 2004 introduces additional requirements to safeguard and promote children's welfare including new statutory duties.

Section 10

Requires each Local Authority to make arrangements to promote co-operation between the authority, each of the authority's relevant partners and such other persons or bodies, working with children in the local authority's area, as the authority consider appropriate. The arrangements are to be made with a view to improving the well-being of children in the authority's area - which includes protection from harm or neglect alongside other outcomes. This Section of the Children Act 2004 is the legislative basis for children's trust arrangements.

Section 11

Requires a range of organisations to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged having regard to the need to safeguard and promote the welfare of children. (See Section 2 of these procedures).

Section 12

Enables the Secretary of State to require local authorities to establish and operate databases relating to the Section 10 or 11 duties (above) or the section 175 duty (below), or to establish and operate databases nationally. The section limits the information that maybe included in those databases and sets out which organisations can be required to, and which can be enabled to, disclose information to be included in the databases.

Section 13

Requires a range of organisations (see table) to take part in Local Safeguarding Children Boards. Sections 13-16 set out the framework for LSCB's, and the LSCB regulations, issued for consultation alongside this document, set out the requirements in more detail in particular on LSCB functions.

Section 53

Amended Sections 17 and 47 of the Children Act 1989 so that before determining what if any services to provide a child in need under Section 17 or actually to be taken with respect of a child under Section 47 the wishes and feelings of the child should be ascertained as far as is reasonable and given due consideration.

6.3 Education Act 2002

Section 175

Puts a duty on local education authorities, maintained (state) schools, and further education institutions, including sixth form colleges, to exercise their functions with a view to safeguarding and promoting the welfare of children - children who are pupils and students under 18 years of age, in the case of schools and colleges.

7. And the same duty is put on Independent schools, including Academies, by regulations made under Section 157 of that Act.

6.4 Adoption and Children Act 2002 - Amendment of Children Act 1989

Section 31

‘Harm' means ill-treatment or the impairment of health or development, including for example impairment suffered from seeing or hearing the ill-treatment of another.

6.5 Sexual Offences Act 2003

Under 13s

The Sexual offences Act 2003 now makes it clear that sexual activity with a child under 13 is never acceptable and that, regardless of circumstances, children of this age can never legally give their consent. A range of other sexual offences were included in the Act.

Under 16s

  • Meeting a child under 16 following sexual grooming
  • Arranging or facilitating a child sex offence - under 16
  • Sexual activity with a child
  • Causing or inciting a child to engage in sexual activity
  • Engaging in sexual activity in the presence of a child
  • Causing a child to watch a sexual act

Under 18s

  • Taking indecent photographs of a child under 18
  • Abuse of a child under 18 through prostitution or pornography
  • Abuse of a position of trust - under the legislation children and young people under 18 years of age are protected from abuse by those who work with them.

6.6 The Education (Pupil Information) (England) Regulations 2000

(SI 2000/297) (as amended by SI 2001/1212, SI 2002/1680, SI 2003/1006 and SI 2004/1377)) govern the transfer of information from a maintained school (the old school) when a child moves to a new school. Regulation 10 (3) provides that the head teacher of the pupil's old school, or, if it has been agreed between the head teacher and the LA, the LA shall send information (the Common Transfer File and Educational records) to the pupil's new school within 15 school days of the pupil's ceasing to be registered at the old school.

The Education (Pupil Registration) (England) Regulations 2006

(SI No.1751) require all schools to keep admissions and attendance registers, and prescribe the particulars that must be contained in these registers.

They also specify the grounds upon which a pupil's name must be deleted from the admission register and the returns that every school shall make to the LA. 

The regulations state that pupils who have been continually unauthorised absent from school for 20 school days must not be deleted from the admission register until both the school and the LA have failed, after reasonable enquiry, to ascertain where the pupil is.

Further: Regulation 12(1) requires every school to inform the LA about every registered pupil who fails to attend regularly or has been absent without reason for at least 10 school days continuously; Regulation 8 (1) (d) states that pupils can be deleted from the school roll where the school has received written notification from the parent that the pupil is receiving education otherwise than at school.

Regulation 12(3) specifies the particular grounds listed under Regulation 8 where schools shall make a return to the LA as soon as the ground for deletion is met in relation to that pupil, and in any event no later than deleting the pupil's name from the register. This includes pupil's deleted under Regulation 8 (1) (d) above.

The Education Act 2002 Section 175

Require LEAs, governing bodies and proprietors of maintained schools to make arrangements to ensure that they safeguard and promote the welfare of pupils and, in doing so, have regard to any guidance issued by the Secretary of State. This includes arrangements to take all reasonable measures to ensure that risks of harm to children's welfare are minimised and take appropriate actions to address concerns about the welfare of a child.

The Education Act 2002 Section 157

And The Education (Independent Schools Standards) (England) Regulations 2003 - require proprietors of Independent schools to have arrangements to safeguard and promote the welfare of children who are pupils at the school.

6.7 The Non-Maintained Special Schools Regulations 1999

Require the governing bodies of non-maintained special schools to make arrangements for safeguarding and promoting the health, safety and welfare of pupils at the school as approved by the Secretary of State.

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