Children Act 1989, section 46

Removal and accommodation of children by police in cases of emergency

Part V Protection of Children

(1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—

(a)remove the child to suitable accommodation and keep him there; or

(b)take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

(2)For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection.

(3)As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall—

(a)inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken with respect to the child under this section and the reasons for taking them;

(b) give details to the authority within whose area the child is ordinarily resident (“the appropriate authority”) of the place at which the child is being accommodated;

(c)inform the child (if he appears capable of understanding)—

(i)of the steps that have been taken with respect to him under this section and of the reasons for taking them; and

(ii)of the further steps that may be taken with respect to him under this section;

(d)take such steps as are reasonably practicable to discover the wishes and feelings of the child;

(e)secure that the case is inquired into by an officer designated for the purposes of this section by the chief officer of the police area concerned; and

(f)where the child was taken into police protection by being removed to accommodation which is not provided—

(i)by or on behalf of a local authority; or

(ii)as a refuge, in compliance with the requirements of section 51,secure that he is moved to accommodation which is so provided.

(4)As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform—

(a)the child’s parents;

(b)every person who is not a parent of his but who has parental responsibility for him; and

(c)any other person with whom the child was living immediately before being taken into police protection,

of the steps that he has taken under this section with respect to the child, the reasons for taking them and the further steps that may be taken with respect to him under this section.

(5)On completing any inquiry under subsection (3)(e), the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released.

(6)No child may be kept in police protection for more than 72 hours.

(7)While a child is being kept in police protection, the designated officer may apply on behalf of the appropriate authority for an emergency protection order to be made under section 44 with respect to the child.

(8)An application may be made under subsection (7) whether or not the authority know of it or agree to its being made.

(9)While a child is being kept in police protection—

(a)neither the constable concerned nor the designated officer shall have parental responsibility for him; but

(b)the designated officer shall do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare (having regard in particular to the length of the period during which the child will be so protected).

(10)Where a child has been taken into police protection, the designated officer shall allow—

(a)the child’s parents;

(b)any person who is not a parent of the child but who has parental responsibility for him;

(c)any person with whom the child was living immediately before he was taken into police protection;

[F619 (d)any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;F619]

(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and

(f)any person acting on behalf of any of those persons,

to have such contact (if any) with the child as, in the opinion of the designated officer, is both reasonable and in the child’s best interests.

(11)Where a child who has been taken into police protection is in accommodation provided by, or on behalf of, the appropriate authority, subsection (10) shall have effect as if it referred to the authority rather than to the designated officer.

Definitions used in section 46 9

child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
harm

“harm” has the same meaning as in section 31(9) and the question of whether harm is significant shall be determined in accordance with section 31(10);

Defined in s.105(1) · see it in the full Act
hospital

“hospital” ... has the same meaning as in the Mental Health Act 1983 , except that it does not include a special hospital within the meaning of that Act;

Defined in s.105(1) · see it in the full Act
local authority

“local authority” means, in relation to England ..., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act 1968 ;

Defined in s.105(1) · see it in the full Act
parent

(2) In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

Defined in Sch.1 para.16(2) · see it in the full Act

21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996 . ).

Defined in Sch.3 para.21 · see it in the full Act
parental responsibility

“parental responsibility” has the meaning given in section 3;

Defined in s.105(1) · see it in the full Act

(1) In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

Defined in s.3(1) · see it in the full Act
emergency protection order

“emergency protection order” means an order under section 44;

Defined in s.105(1) · see it in the full Act
child arrangements order

"child arrangements order " means an order regulating arrangements relating to any of the following—

(a)

with whom a child is to live, spend time or otherwise have contact, and

(b)

when a child is to live, spend time or otherwise have contact with any person;

Defined in s.8(1) · see it in the full Act

“child arrangements order” has the meaning given by section 8(1);

Defined in s.105(1) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act

Cases considering section 46 42

Williams and another v London Borough of Hackney

[2018] UKSC 37 · 18 July 2018Limits

Police protection is a compulsory emergency mechanism distinct from voluntary section 20 accommodation. Only the police may remove a child without a court order under this power, and renewed police protection may authorise continued retention after an unequivocal parental request. (see paras [38]; [45]; [53]) The police used the provision to protect the eight children on reasonable cause to believe that they would otherwise be likely to suffer significant harm. (see para [4]) The provision required suitable police-protection accommodation to be supplied by a local authority or certificated refuge; the children received local authority foster placements. (see para [4]) Police protection could last no longer than 72 hours, after which the lawfulness of continued accommodation depended upon section 20. (see paras [4]; [53]-[54])

London Borough of Hackney v Williams & Anor

[2017] EWCA Civ 26 · 26 January 2017Defines

The court confirmed that police protection was a coercive power justified by reasonable cause to believe that the children were likely to suffer significant harm. The initial exercise of the power was not challenged (see paras [6], [8], [38], [40]). The court accepted the statutory power to remove a child to suitable accommodation where the constable has reasonable cause to believe that significant harm is otherwise likely (see para [38]). The court referred to the statutory framework for parental contact while a child is in police protection. The court noted the application of the contact provision where the child is accommodated by or on behalf of the local authority. The court referred to the duty to release a child after inquiry unless reasonable cause for believing that significant harm remains continues. The court applied the 72-hour maximum period for police protection. Any longer period required another statutory route (see paras [38], [40]). The court identified the power to apply for an emergency protection order during police protection (see para [38]).

A v East Sussex County Council & Ors

[2010] EWCA Civ 743 · 2 July 2010

The court applied section 46 as a secondary emergency power. Its use is justified only where obtaining an emergency protection order is not reasonably practicable and immediate action is necessary to protect the child from significant harm. (see paras [10]; [17]-[19]) The court applied the reasonable-cause threshold in section 46(1). The medical assessment and the prospect of the child leaving hospital unsupervised entitled the constable to believe that the child would otherwise be likely to suffer significant harm. (see para [19])

22 more judgments, and what each says about section 46, are in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F619S. 46(10)(d) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 36; S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.

Commencement

  1. I43S. 46 wholly in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)