The law on how carers should look after children is complex but general guidelines can be provided. Victoria Neumark discusses them.
In December 1991, the Government ratified the UN Convention on the Rights of the Child. Although this is not embodied in English law, many agencies are guided by it in their practice and Scottish law has adopted its principles. Broadly, they are: * That a parent has responsibilities to safeguard and promote the child's health, development and welfare * That parents should provide direction and guidance in a manner appropriate to the child's stage of development * They should take into account the views of the child, depending on his or her age and maturity * And consider the views of any other person with parental responsibility.
Although anyone caring for other people's children would do well to bear this framework in mind, the web of legal prescriptions affecting carers of young children is very complex. A new publication for the National Early Years Network, Responsibility for Under-Eights: The Law (Pounds 5, 77 Holloway Road, London N7 8JZ), sets out the main points.
Like much of English law, the law governing the care of children is to be found in legislation, case law, government guidance and circulars. The definition of parental rights, responsibilities and duties and the devolution of some of them to carers is unclear, but the Children Act 1989, none-theless, invokes them. Which leaves the carers at the sharp end in need of some clarity.
Carers must establish clearly who has parental responsibility and only hand the child over to specified adults, exercising "exceptional vigilance". In the case of marital breakdown or disputes over child care, carers should ask for copies of court orders. If any dispute spills over into a breach of the peace, carers should not hesitate to call police; however, it is up to the parents to resolve their differences without involving carers. On the positive side, carers should have a policy which promotes parental involvement with their child's development. All such policies should be in writing.
The law on negligence is unclear. In general, carers are supposed to act "as a reasonably careful parent" would do. The courts recognise that adequate supervision must be balanced with promoting independence.
There must be protection against predictable risks, such as from scissors (but unusual dangers or ones which stem from a child's defiant disregard may not be seen as the fault of carers).
Guidelines issued by the Department for Education and Employment and local education authorities on supervising children, and the ratio of adults to children on outside trips would be sensible to follow.
Occupiers of premises have a "common duty of care" to ensure that the premises are not dangerous: that such hazards as slippery floors, open windows, dangerous electrical sockets are avoided.
Written policies should govern written permissions for routine administration of medication, calling of parents and emergency services, health training, accidents when on school trips and procedures in emergencies when parents cannot be found.
Behaviour and discipline
There is often a fine line between reasonable and moderate physical punishment and assault. Even when parents have given their permission for physical chastisement, it is unwise for carers to use it.
Carers should formulate written policies on what behaviour would be grounds for exclusion and should make parents and children aware of their policy, giving examples. Appeals and challenges must be heard. Exclusion should always be a last resort. Childminders' contracts should include a clause on unacceptable behaviour as grounds for termination.
Touching without consent technically constitutes assault. When children have to be touched against their will for their own protection or that of others, a record should be kept.
If a child is injured, a medical examination should be made and photographs taken as soon as possible.
The DfEE has issued complex guidelines for schools dealing with allegations of abuse or assault against staff. Other institutions need to have policies on dealing with such allegations and procedures which are fair to all concerned.
Parents are responsible for ensuring that baby-sitters have a contact number for the evening and know how to deal with emergencies. It is likely that the courts would expect those over the age of 16 to exercise an adult standard of care for children's safety.
It is possible that carers may be called upon to give evidence in divorce cases. It is helpful if written records can back up evidence.
Carers of under-eights need to have an understanding of the duties of local authorities to those in care or "in need". Children "in need" are those who are not achieving a reasonable standard of health or development, whose health or development is likely to be damaged and those with disabilities.
Services vary greatly from area to area. Carers need to find out what is on offer locally.
All social service departments must publish a Children's Services Plan (CSP) which assesses the provision of services for children for their area by 31 March 1997. Early-years workers are advised to communicate their views to those drawing up these plans.
There is no duty on carers to report their concerns about children to police or social services, nor is there any duty in general criminal law to report knowledge that a crime has been committed or is going to be committed. However, if asked to provide information, local authority carers are required to do so.
Government guidance stresses the importance of inter-agency co-operation in child protection. Schools and teachers, according to a DfEE circular, should have agreed procedures for responding to signs of abuse.
Where they are seriously worried about the welfare of a child, early-years workers can in theory apply for an Emergency Protection Order through the courts if a local authority has failed to take appropriate action.
In an emergency, when they are not satisfied by the action of social services, child care workers should consider calling police, who can offer protection for up to three days.
Children who are witnesses in criminal cases may need adults to support and explain. Counselling is now generally allowed for such children, provided that their evidence has first been video-recorded.
Health and safety
Storage of food should be cleared with the local environmental health department.
Staff should ideally be trained in food hygiene, as food poisoning could lead to claims for negligence arising from a breach of care.
Parents are responsible for packed lunches, but carers are responsible for their safe storage.
Fire safety demands clear and unobstructed means of escape, accessible fire fighting equipment and smoke alarms.
Although first aid training is not legally required, it may be seen as a breach of the duty of care if no member of staff is able to deal with emergencies.
Hazardous substances must be kept in a separate, marked and lockable cupboard.
If any child suffers from a notifiable disease, carers should, though not legally bound to do so, always inform parents in writing. Notifiable diseases are: cholera, plague, relapsing fever, smallpox, typhus, meningitis, diphtheria, mumps, measles and food poisoning. Aids is not.
Accidents should always be recorded in a register.
Dangerous dogs and animals should not be in contact with small children.
While there is no legal requirement for early-years services to use coaches and minibuses with seat belts, this is good practice. Appropriate supervision must be provided. In private cars, insurance must be extended to business cover and seat belts used.
Those working with young children should develop policies to promote equal opportunities. It is unlawful to set admission quotas, refuse admission or give preferential admission to any child because of their racial group or gender, even if the aim is to create a multi-racial or balanced gender group. It is also unlawful to discriminate indirectly by setting conditions, such as wearing specific clothing or coming from specific areas, if these exclude members of any racial group.
In the case of someone taking another into their own home and treating them as a member of their own family, whether for money or not, this does not apply, but it does in the case of childminders.
In the case of organisations providing benefits such as cultural activities or language classes for any particular racial group, discrimination on the grounds of colour is still unlawful. Those specifically set up to promote activities to one gender may do so (such as girls' football), but may not discriminate in hiring behind-the-scenes staff. However, local authority groups should have regard to the racial groups to which children in their area belong when recruiting staff and in services and opportunities available to children.
It is unlawful to limit activity on the grounds of gender (such as dolls for girls only).
The law is still being developed with regard to discrimination for disabled children. Government guidance suggests that carers should consider how to help young children with disabilities develop in the company of all children.
A parent has a right of access to school records, except where they include confidential information about a third party or information which a third party has not given permission to disclose, or where information might cause harm to the child or the running of the school. Parents also have the right to insist that errors are corrected. Schools can then also record their dissent, if wanted.
It is advisable, though not compulsory, to keep: * attendance registers * accidentincident books * a record of involvement in child protection issues * a record of safety checks * a record of a child's achievement and progress.
It is highly advisable to develop policies of openness and partnership in record-keeping, so that all are satisfied about the accuracy of records, always balancing the child's welfare with parental right of access.
Although there is no legal requirement for under-eights, groups other than schools (and then only about the delivery of the national curriculum or religious education) to have complaints procedures, it is a good idea for them to develop some.
Basic legal principles of fairness should be followed or complainants may be aggrieved. Formal and informal complaints should be distinguished.
At the first formal stage, a group or individual nominated by the organisation should hear the complaint and record its decision in writing within 28 days.
A right of appeal, to be heard by different people from those at the first hearing, should exist. Complainants should be supported by a friend or adviser.
Recommendations of the appeal hearing should be communicated to the complainant within 24 hours.
RECORDS SHOULD INCLUDE
* Names and addresses of all children attending * Names and addresses of all staff and assistants * Names of any other people dwelling on the premises * Names and addresses of the board or committee of management
INDIVIDUAL RECORDS SHOULD INCLUDE
* Age and date of birth
* Name by which child is known, birth name and surname * Names of parents * Emergency phone numbers * Information about health problems or conditions