The Children Act

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Question 1 When looking at the threshold, it’s important that all factors are taken into consideration. The NSPCC’s research indicates that fewer than three children under the age of 10 were seriously injured or seriously injured every week. To give Lucy a fair overview, it will be important to take into account all facts concerned with Peter.

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For the local authority to get a care order, there are certain provisions which must be met. Part IV of the Children Act gives power to local authorities to apply for care orders. This will need to be done via adjudication at the court who has jurisdiction. A supervision order lasts 12 months, with potential extensions for up to three years (block 2). There are certain conditions that must be met in order for the court to consider an order. A court will only make a decision subject to the criteria of Section 31 (2) of the Children Act 1989 being met. Whether a child is suffering significant harm, or is likely to suffer significant harm; and the harm is attributable to

  1. The care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
  2. The child’s being beyond parental control.

The definition of harm is defined under Section 31 (9) of the Children Act 1989. It is the ‘ill treatment or the impairment of health or development’. Harm is a subjective term. It is attributable to emotional and psychological harm, and does not just relate to physical injury. In the case of Humberside County Council v B [1993], the definition of significant was given its dictionary form. In the case involving Re M (A Minor) (Care Order: Threshold Conditions) [1994], the term ‘is suffering’ was interpreted by the House of Lords as to no whether a child is suffering in the present, but whether the child has suffered within the past. If the child is likely to suffer harm, the local authority must show this. In the case involving Re H and R [1996], the House of Lords declared that ‘likely’ is defined as a ‘real possibility’ Once the threshold has been met in relation to harm, the court must rule that it is attributable to the order. Beyond parental control is outlined in s 31(2)(b)(iii). This demands the court to establish that the child is suffering due to the decisions made by the child in contravention of the parents’ wishes. The standard of proof in this is the balance of probabilities (more likely than not). In Re B (Minors) (Sexual Abuse: Standard of Proof) [2008] it was ruled that the standard of proof must be met in order for judgment to be perceived in relation to s31(2) and/or s1 of the Children Act 1989 must be met, in order for the balance of probabilities to be met. By looking at the facts surrounding Peter, it will allow for an overview as to whether the threshold has been met. When looking at the definition of harm, as outlined by the House of Lords in the cases involving Re (A minor) (Care Order: Threshold Conditions) [1994] and Re H and R [1996], it’s clear what the words ‘suffering’ and ‘is likely to suffer’ mean. Harm does not just mean physical harm, although the in case of Peter, there has been physical harm due to the neglect of Peter (personal injury). it’s imperative to distinguish whether Sarah is suffering significant harm, or is likely to suffer significant harm. It’s clear that due to the negligence of Peter, Sarah has suffered detrimental effects to her physical wellbeing. Despite there being a ‘child lock’ on the bottle of methadone, Peter’s negligent actions have caused harm to Sarah’s wellbeing. Section 21 (2) (b) (11) states that the court will satisfy the threshold criteria if the harm is attributable to the child being beyond the control of the parent. In Peter’s case, this is a pertinent point. Peter is upset and ‘distraught’ by his actions. Although Peter did not intentionally mean to cause harm to Sarah, the negligence which caused harm is enough to satisfy the criteria of being beyond the control of the parent. In conclusion, it is likely when perusing the facts, that an order will be made, Peter was negligent and put Sarah in great danger with the methadone. If Sarah had consumed more, the severity of the injuries would have been increased. The harm was attributable beyond the parent’s control. It’s clear that Peter was shocked by his actions, although this is not a viable defence as the child was harmed pursuant to the regulations set out in section 31 of the Children’s Act. Peter is still taking methadone as a recovering drug user, which would indicate that Sarah has a chance of suffering harm in the near future without an order being made. Question 2 There is a general consensus in society that punishment should match the crime. The differing theories that exist, is that a person should punished in accordance with the crime, and upon deliberate wrong doing. Using the theories in reader 2 allows for a subjective overview as to whether punishment should fit the crime. The analysis will also be covering different areas of punishment and societal developments, proportionality, and retributive theories. Proportionality in modern society is a logical method which assists the correct balance between punishment and crime. Proportionality is used to convey the belief that the punishment should fit the crime. The law surrounding retributive justice is that punishment is unjust. The main aim of punishment is retribution. It is conveyed to defend the authority of the law, whilst providing justice to a criminal. In the UK, retribution has highly evolved periodically. This theory is somewhat outdated, and unrepresentative of justice in the United Kingdom. There is a retributive theory which somewhat justifies capital punishment, in certain circumstances, however the right to life is a fundamental right. Article 2 of the ECHR have stated that there is a fundamental right to life. Whilst the UK is a member of the ECHR, protocol 13 states that the death penalty will never be brought back to the UK, as it will coincide with a right to life. Some theorists argue, that the biggest deterrence for murder is the death penalty, although within modern society, it is believed that the biggest deterrent for murder is taking away the freedom and liberties of the criminal. In some jurisdictions, punishments coincide with the severity of the crime, for example under sharia law a thief may have their hand cut off; this is seen as being representative of the crime, and will prevent further thefts. However, this is somewhat outdated in modern society, it is seen unrepresentative against human rights to inflict the same level of pain upon the victim, despite many leading theorists believing it is deserved as an act of deterrence. Deterrence is a form of preventing offenders from committing a certain type of crime, as the offender is aware of what the punishment will be. Individual deterrence is being outlawed by the courts to stop a person becoming a repeat offender, by trying to show that it is not within their interest to committee the crime. The 1990’s saw a rise of unit fines. These fines were scaled from unites 1 to 50. The scale was to determine the severity of the crime committed. Courts would make judgements based upon the offender’s weekly income, and how much would be paid. However, this system was seen as unjust, it would favour the rich whereas the poor would suffer. If a wealthy individual was to commit a summary offence, in theory their income would not be to decreased, where as a less wealthy individual would feel the punishment more. General deterrence is simply portrayed to try and scare people to not commit crime. If an individual is fully aware of the punishment, is it seen that it will deter them from breaking the law. Using the example in reader 2, it shows that general deterrence does not always work. In Barbados, the sanction for murder, is automatic death penalty. However, the high level use of firearms and incidents involving murders has not have a complete deterrence upon the crime of murder and still to this day, there is a widespread use of firearms. In some jurisdiction, the death penalty is still in existence. It is now seen that the death penalty for the offence of murder is somewhat outdated and doesn’t represent justice. Justice for murder offenders is now seen by life-imprisonment and taking away the freedom of the offender. Should a person in this day and age receive the death penalty for murder, it is seen that the will not have his freedom taken away, and will not suffer in a just way. The theory behind rehabilitation is to prevent an offender from committing offences in the future.. A classic example can be seen for young offenders. Courts will always look to rehabilitate a young person, where possible to ensure that they become a well-adjusted member of society. However, rehabilitation is not available to every offender. Some might argue that providing a criminal with education and counselling is not representative of justice, however it has been proved from rehabilitation that it does work. An example can be seen with the use of drug users. Drug users are sent by the court to undertake drug rehabilitation courses, to prevent any repercussions in the future. There are many sanctions available to the court. Imprisonment has been in use since 1795-50 BCE in Babylon. Within the past 200 years, prisons have been built across the world. Prisons are seen to provide justice and take away the freedom of the criminal. Philosopher Michel Foucalt believes that the development of prisons have been instigated by the middle-class, whom are trying to dominate and prevent lower-class aberrant behaviour (Block 2, p.48) Conversely, society has had an increasing view that the development of prisons are demonstrating the humanitarian view of society. The terms life imprisonment does not necessarily mean just that. Offenders are given a minimum 20 years imprisonment before being eligible for parole. The minimum sentence for life imprisonment up until the Criminal Justice Act 2003, was set by the home secretary, however some ruled that a politician should not be making sentencing structures and that the court with jurisdiction of a case should. In the infamous case involving James Bulger, the convicted killers’ lawyer argued in the European Court of Human Rights that Venables and Thompson had not had a fair trial, and that there trial contravened their human rights, more specifically: Article 6 of the European Convention on Human Rights. Lawyers argued that the sentence was unfair due to the need for a fair hearing by a independent tribunal. Fines are another way to serve punishment. Fines are seen as a fair punishment in low summary offences. Fines take away money from the hard working. Examples of fines can be seen within traffic violations. Speeding tickets are often seen as a way to prevent individuals from speeding again and to prevent road safety. There are also additional sanctions to speeder in England and Wales, proven by the deployment of penalty points. Penalty points are a good way to deter individuals from speeding in the future. However, should there be repercussions, prosecution will follow, and the severity can lead to a disqualification of license, thus taking away liberties of the accused. A community rehabilitation order was named under the Powers of Criminal Courts Sentencing Act 2000. The concept surrounding a community order is to treat each criminal individually and to apply sanctions in respect to the sentencing structure. Such punishments may include unpaid work or rehabilitation courses. The Criminal Justice Act 2003 introduced the punishment of formal cautions. It is seen as a punishment containing both rehabilitation and deterrence. A person of good character who has committed a minor summary offence, is often given a second chance. Upon this caution they must not commit any further criminal activity, or face a more serve punishment. The Coroners and Justice Act 2009 introduced the Sentencing Council for England and Wales in 2010. This was used to create a sentencing structure for England and Wales to ensure that consistency was used to create within court proceedings. This replaced the sentencing Advisory Panel and the Sentencing Guidelines Council. Courts will need to take into account the seriousness of the offence. The Sentencing Council (SC) and Criminal Justice Act 2003 (CJA) states that the judge will need to consider whether the offender has previous convictions, and what sanction was applied. Section 143 (1) CJA 2003 states that the seriousness of the crimes has to be determined by looking at the culpability and the harm that was caused or was capable of being caused. Courts must take into account if any aggravating or mitigating factors. Aggravating factors include working in a gang, repeated crimes against the victim and abusing a position of trust. Mitigating factors are of a lower level of culpability, and some examples include playing a minor role in committing the crime or provocation. Once charges have been brought against an individual, the defendant will need to enter a plea. Generally a guilty plea will result in a shorter sentence, usually one-third deduction of the sentence. Another area of crime, is corporate crime. This includes corporate manslaughter, pursuant to the Corporate Manslaughter and Corporate Homicide Act 2007. Corporate manslaughter arises due to breaches of health and safety. Corporate crime, doesn’t always surround personal injury. The Sunday trading laws are a good example of this. If a company trades for more than outlined within the act, they may find themself with a fine. The maximum fine being £50,000. The shop has committed an offence by trying to earn more profit by opening more hours than allowed, and as a result the company will receive a fine and have profits taken off them, this is generally perceived a fair sight of justice. In conclusion, its clear that societal developments have changed the approach to punishments. While it is clear that in the jurisdiction of the UK that the death penalty has been abolished, it is still at large today. It’s clear that in the UK a ‘fair’ punishment would be taking away the liberties and freedom of the criminal as opposed to prevent him from serving punishment over time by the means of the death penalty. It is important that offenders are given the correct rehabilitation and deterrence, to ensure that society develops an overview as to the harsh punishments put before them, if they were to commit a crime. It’s clear that legal personality doesn’t just apply to individuals; companies throughout the UK are bound by certain laws, giving them a direct personality. Word Count: 2481 Bibliography The Open University (2012). Reader 2 . The Open University, Milton Keynes, The Open University. 134-136. The Open University (2012). Block 5 ‘Sanctions’. The Open University, Milton Keynes, The Open University. 39-74. Bagaric, M. (2001) ‘Punishment and sentencing: A rational approach, London, Cavendish.

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