Care and Supervision Proceedings and the Public Law Outline

NOTE

For applications for Emergency Protection Orders, see Applications for Emergency Protection Orders Procedure.

N.B. Any changes in a child's legal status as a result of court proceedings must be recorded on the electronic database.

RELATED CHAPTER

Legal Gateway Planning Meetings Procedure

RELATED GUIDANCE

Public Law Outline (2014)

Statutory Guidance for Local Authorities on Court Orders and Pre-Proceedings (2014)

Protocol and Good Practice Model: Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Direction Hearings (October 2013)

Practice Direction 25B - The Duties of an Expert, the Expert's Report and Arrangements for an Expert to Attend Court

The ADCS website provides links to the following:

  • Social Work Evidence Template (SWET);

  • Social Work Evidence Template – Final Statement (SWET).

AMENDMENT

In February 2018, Section 4.2, Case Analysis was updated to reflect the ‘permanence provisions’ of the Care Plan added by s. 8 Children and Social Work Act 2017 (amending section 31(3B) Children Act 1989) which a court is required to consider when deciding whether to make a Care Order.

1. Introduction

Under Section 31 Children Act 1989, a court may only make a care order or supervision order if it is satisfied that the threshold criteria have been met.

Under the Public Law Outline (2014) and the Children and Families Act 2014, there is a 26-week time limit for the completion of care and supervision proceedings. This places an increased emphasis on pre-proceedings work and the quality of assessments. 

Where adoption is the permanence plan for the child and no Care Order has been made, combined care and placement order applications should be made, so that decisions can be made swiftly. Where there are on-going Care Proceedings, the Placement Order application should be submitted as soon as the agency decision maker decision has been made. The court may make both orders, which would ensure that the child remains protected should the Placement Order be revoked (as the Care Order would automatically be reactivated).

Placement Order applications are not subject to the 26 week time limit, but an early application will ensure best use of court time and help keep to a minimum the overall length of the process. The application must clearly state why the parents cannot parent the child, what other realistic permanence options have been considered and rejected, and why adoption is the only permanence option that meets the needs of the child. (See also Placement for Adoption Procedure).

2. Pre-Proceedings

2.1 Principles

Work done in the period pre-proceedings is vital for two reasons:

  • It may divert a case along a route which avoids the need for proceedings;
  • When that is not possible, and proceedings have to be commenced, the preparatory work will facilitate the smooth running of the case.

Pre-proceedings work includes:

For cases which result in court proceedings, the information generated by the Assessment will be expected to form the central part of evidence that supports an application for a care or supervision order, and will include, as appropriate, primary evidence from the agencies involved. Additional parenting capability assessments (where there is a specific need for specialist expertise in order for a decision to be made as to threshold and the need for proceedings) should be commissioned at the pre-proceedings stage.

  • Family Group Conferences and the identification and assessment of family and friends placements, if appropriate. (See Family and Friends Policy and Procedure and Family Group Conference Service Procedure);
  • Helping families to engage early - this engagement should include early, direct and clear written communication with the parents, setting out the local authority’s specific concerns, outlining what needs to be done to address those concerns and indicating the possibility of proceedings if the situation does not improve within an identified timescale. It is important that throughout this period, the child (subject to his or her age and understanding) is kept aware of what is being proposed and that his or her views are heard. This may include by way of an advocate for children and/or for parents where there are issues of capacity.

Sir James Munby, President of the Family Division, set out in ‘The Process of Reform: the revised PLO and the Local Authority’ the expectations of the local authority in relation to pre-proceedings work. He recommended that:

  • Local authority lawyers be involved, advising and assisting their social work clients, at an early stage;
  • A properly organised Legal Planning Meeting is invaluable and can be the key to achieving timely outcomes to Care Proceedings;
  • The employment of a local authority case manager is vital. (The post of case manager was created for the purposes of the Tri-borough Care Proceedings Pilot.) The case manager works directly with social workers and managers, with the intention of improving the quality of social work Assessments and statements presented to court. The aim is that statements are purposeful, concise and clearly lay out the work that has been undertaken up to that point. The Case Manager works in a coaching role to help social workers produce high quality statements and to be explicit about the impact of delay on each individual child.

2.2 Legal Gateway Planning Meetings

Before a decision can be made to initiate Care or Supervision Proceedings, a Legal Planning Meeting should be held - see Legal Gateway Planning Meetings Procedure.

At the Legal Gateway Planning Meeting, a decision will be made in principle about whether the Threshold Criteria have been met and whether:

  • It is in the best interests of the child to provide a further period of support for the family with the aim of avoiding proceedings; or
  • Proceedings should be initiated immediately.

Information presented to a Child Protection Conference should inform the decision-making process but it is for the local authority to consider whether it should initiate proceedings.

The Legal Gateway Planning Meeting (LGPM) will consider all cases where the recommendation is to enter the PLO process (Letter before Proceedings and Pre Proceedings meetings) at pre-proceedings level. A decision will be made about whether the Threshold Criteria have been met and if It is in the best interests of the child to provide a further period of support for the family with the aim of avoiding proceedings; or

  • Exceptionally it may recommend that proceedings should be initiated immediately without sending a Letter before Proceedings and without entering the PLO pre proceedings process.

The Public Law Outline Proceedings Panel (PLOPP) will consider all cases where the Letter before Proceedings / Pre proceedings process has not achieved sufficient significant change or where it is recommended that proceedings should be initiated immediately.
If the decision is taken at LGPM to undertake a formal pre-proceedings process, the local authority will send to the parents/those with Parental Responsibility:

  • A letter before proceedings which states that proceedings are being contemplated.

See Letter Before Proceedings; SSCC366

Where a parent may lack capacity, consideration should be given as whether personal discussion, involving an advocate and/or legal representative, should be undertaken before the sending of such a letter.

In pre-birth cases, the timing of the sending of the pre-proceedings letter or letter of issue should take account of the risk of early birth and should ideally be sent at or before 24 weeks.

2.3 Letter Before Proceedings

The Letter Before Proceedings SSCC 366 is the formal written notification that proceedings are likely. It should set out:

  • A summary in simple language of the local authority’s concerns;
  • A summary of what support has already been provided to the parents;
  • What the parents need to do and what support will be provided for them, to avoid proceedings, including timescales;
  • Information on how to obtain legal advice and advocacy, making clear how important it is for the parent to seek legal representation.

The letter should invite the parents/others with Parental Responsibility to a pre-proceedings meeting (see Section 2.4, Pre-Proceedings Meeting below).

An up to date list of relevant solicitors in the local area who are specialists in child care cases should be sent with the pre-proceedings letter.

2.4 Pre-Proceedings Meeting

Where proceedings are being contemplated, parents/others with Parental Responsibility should be invited to a pre-proceedings meeting to agree proposals for addressing the current problems which have led to concerns about the welfare of the child.

At this meeting, the local authority should:

  • Agree a revised plan for the child, which should be subsequently confirmed in writing to the parents, setting out what the parents and the local authority must do to safeguard the child. The plan will indicate the steps the local authority will take to support the parents and the timescales within which progress must be made for proceedings to be avoided;
  • Outline the steps that the local authority will take at the end of this period, depending on whether progress has been demonstrated; and
  • Review arrangements for identifying potential family carers, and/or for assessments with the parents, particularly where these require letters of instruction to assessment services.

Setting clear expectations and timescales for improvement will reduce the potential for delay. After the initial meeting a date for the first, second and third/final  review meeting will be scheduled to take place every 3 weeks. The total length of Pre Proceedings work is to be 12 weeks.

See Pre-Proceedings Flowchart

3. Starting Care or Supervision Proceedings

Before a decision can be made to initiate care or supervision proceedings, along with the endorsement of the Service Manager, approval must be obtained from the Public Law Outline Panel.

The approval of the Designated Manager (Care Proceedings) must be obtained.

Once the decision has been taken to initiate proceedings, the social worker will send the parents/those with parental responsibility a letter of issue which states that proceedings are being initiated - see letter template at SSCC757.

The social worker and local authority solicitor will then prepare the documents that are required to be produced for Court. The local authority solicitor will advise the court of the name of the independent reviewing officer and their contact details.

In some cases, the level of concern about a child’s welfare may require rapid and sometimes immediate recourse to the courts. (Authority to issue proceedings must be obtained from the appropriate Head of Service.)

There may not be time for a pre-proceedings meeting and the collation of all documentation prior to such an application. A lack of documentation should never prevent a case being brought to court quickly where this is essential to protect the child’s welfare. Such cases should never be the norm, however, and where a particular piece of documentation cannot be supplied immediately, the authority must state on the application form the reasons why it cannot be included and confirm the date when the documents will be submitted to the court.

3.1 Pre-Birth Planning and Proceedings

Considering Care and Supervision Proceedings at a pre-birth stage and when a child is newly born remains challenging for a number of reasons.

A High Court judgment (Nottingham City Council v LW & Ors [2016] EWHC 11(Fam) (19 February 2016)) has sought to provide ‘good practice steps’ with respect to public law proceedings regarding newly born children and particularly where Children’s Services are aware at a relatively early stage of the pregnancy.

From previous judgments it is established that: ‘At an interim stage the removal of children from their parents is not to be sanctioned unless the child’s safety requires interim protection.’ (See also Applications for Emergency Protection Orders Procedure, X Council v B Guidance).

It continues to be important to ensure for both the child and the parent(s):

  • Any hearing should be considered a ‘fair hearing’ commensurate with Article 6 of the Human Rights Act (the right to a fair trial);
  • The fact that a hospital is prepared to keep a newborn baby is not a reason to delay making an application for an ICO, (the hospital may not detain a baby against the wishes of a parent/s with PR and the capability of a maternity unit to accommodate a healthy child can change within hours and is dependent upon demand);
  • Where a Pre-birth Plan recommends an Application for an ICO to be made on the day of the birth, ‘it is essential and best practice for this to occur’.

Once it has been determined that there is sufficient evidence to make an application for an ICO and removal of a child, any additional evidence (e.g. from the maternity unit) must not delay the issuing of proceedings. Any such information may be ‘envisaged and/or provided subsequently’.

Good Practice Steps

In all but, ‘the most exceptional and unusual circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth’:

  • The Pre-birth Plan should be rigorously adhered to by social work practitioners, managers and legal departments;
  • A risk assessment of the parent(s) should be ‘commenced immediately upon the social workers being made aware of the mother’s pregnancy’;
  • The Assessment should be completed at least 4 weeks before the expected delivery date;
  • The Assessment should be updated to take into account relevant events pre - and post delivery where these events could affect an initial conclusion in respect of risk and care planning of the child;
  • The Assessment should be disclosed upon initial completion to the parents and, if instructed, to their solicitor to give them opportunity to challenge the Care Plan and risk assessment;
  • The Social Work Team should provide all relevant documentation (see Section 4, Documentation) necessary to the Local Authority Legal Adviser to issue proceedings and application for ICO:
    • Not less than 7 days before the expected date of delivery;
    • Legal Services must issue on the day of the birth and certainly no later than 24 hours after the birth (or the date on which the Local Authority is notified of the birth).
  • Immediately on issue – or before - the Local Authority solicitor:
    • Should serve the applications and supporting evidence on the parents and, if instructed, their respective solicitors;
    • Should have sought an initial hearing date from the court, or the best estimate that its solicitors could have provided.

4. Documentation

4.1 Local Authority Documentation

After the decision to commence legal proceedings has been made, a request to legal services to issue proceedings is made on Form SSCC314 'Instructions to the Child Care Team to Commence Proceedings'.

Documents to be filed with the Court

The following documents must be attached to the application filed with the court on Day 1:

  • The social work statement which includes the Genogram and Chronology (SSCC369) - the chronology and genogram are included within the statement. The chronology will be restricted to the previous two years unless there is more historical information on which the local authority case relies. The genogram will include extended family;
  • The statement should include where Adoption is being considered the date when the Adoption Decision Marker will consider the making of the SHOBPA should be included in the initial statement;
  • The dates for completion of any proposed or outstanding assessments;
  • Any current Assessment relating to the child and/or the family and friends of the child to which the social work statement refers and on which the local authority relies;
  • The Care Plan (SSCC266); This is prepared by the social worker in conjunction with the Team Manager and requires signature of the social worker, and the signature of a Service Manager;
  • Where available birth certificates and colour photographs of the child(ren) should be attached;
  • Index of Checklist documents as prepared by the LA solicitor.

Documents to be Served on the Other Parties (but not filed with the court)

On Day 2 the local authority must serve on the other parties (but must not file with the court unless expressly directed to do so) the application form and annex documents as set out above, together with the ‘evidential checklist documents’. These are evidential and other documents which already exist on the local authority’s files, including:

  • Previous court orders (including foreign orders) and judgments/reasons;
  • Any assessment materials relevant to the key issues, including capacity to litigate, Section 7 or Section 37 reports;
  • Single, joint or inter-agency reports, such as health, education, Home Office and Immigration Tribunal documents.

Documents to be Disclosed on Request by any Party

  • Decision-making records, including:
    • Records of key discussions with the family;
    • Key local authority minutes and records for the child;
    • Pre-existing Care Plans (e.g. child in need plan, looked after child plan and child protection plan);
    • Letters before proceedings;
    • Any issued as to jurisdiction/international element should be flagged with the court.

Principles

In the revised Public Law Outline, both the filing and service of documents is more focused, with a concentration on what is relevant, central and key, rather than what is peripheral or historical. Local authority materials are expected to be much shorter than previously, and they should be more focused on analysis than on history and narrative. Even if there has been local authority involvement with the family extending over many years, both the social work Chronology and the summary of the background circumstances as set out in the social work statement must be kept appropriately short, focusing on the key significant historical events and concerns and rigorously avoiding all unnecessary detail.

Documents must be recent - restricted to the most recent, limited to those from the last two years. Documents need not be served or listed if they are older than two years before issue of the proceedings, unless reliance is placed on them in the local authority’s evidence.

Documents must be focused and succinct.

Please refer to the Social Work Evidence template which must be used as the initial statement - SSCC369.

See SSCC856 for a populated case study and Guidance for Completing Statements

The local authority materials must be succinct, analytical and evidence-based. Assessment and analysis are crucial. They need to distinguish clearly between what is fact and what is professional evaluation, assessment, analysis and opinion, and between the general background and the specific matters relied on to establish ‘threshold’.

All completed applications should be delivered by e-mail to childcareparalegal@rotherham.gov.uk,at least 3 working days prior to the date set for filing, to enable consideration to be given for quality assurance and amendments. This also assists with administration by the Paralegals who will be responsible for making sure that sufficient copies are circulated to the other parties. Paralegals will prepare the application and will submit the necessary papers to Court and to CAFCASS.

It is important that you notify the Legal Department of any days you would not be able to attend Court. The day of issue is known as Day 1, from which the entire timetable for the proceedings is calculated. The First Hearing should be listed within 7 working days of issuing the proceedings and no later than 12 days.

When the Court has listed the matter for a hearing, the papers will be returned to the Legal Department for service on the parents of the child and other parties that require notice.

Every person who has Parental Responsibility for the child is automatically a party to the proceedings and must be served with a copy of the documents filed at Court, together with a notice of hearing. Since 1 December 2003, a Father who is named on the child's birth certificate acquires Parental Responsibility for the child and is entitled to be involved in the proceedings. Any parent or carer of the child, who does not have Parental Responsibility for the child, is entitled only to receive details of the first hearing. They are not entitled to see copies of the statement or care plan until they have been made party to the proceedings, for which they will have to make application.

Threshold Statement

‘Threshold Statement’ means a written outline by the legal representative of the local authority in the application form, of the facts which the local authority will seek to establish by evidence or concession to satisfy the threshold criteria under Section 31(2) of the Children Act 1989, limited to no more than 2 pages.

Local Authority Case Summary

A document prepared by the Local Authority legal representative for each case management hearing in the prescribed form.

4.2 Case Analysis

A written (or, if there is insufficient time, an oral) outline of the case from the perspective of the child's best interests prepared by the children's guardian or Welsh family proceedings officer for the CMH or FCMH (where one is necessary) and IRH or as otherwise directed by the court, incorporating an analysis of the key issues that need to be resolved in the case including:

  • A threshold analysis;
  • A case management analysis, highlighting any gaps in the evidence and additional assessments / actions required, including an analysis of the timetable for the proceedings, an analysis of the Timetable for the Child and the evidence which any party proposes is necessary to resolve the issues;
  • An analysis of parenting capacity to meet the child’s needs, including any gaps and whether these gaps can be bridged within the child’s timescales;
  • A child impact analysis, including:
    • An assessment of the impact on the child concerned of any harm that he or she suffered or was likely to suffer;
    • An analysis of the ascertainable wishes and feelings of the child and the impact on the welfare of the child of any application to adjourn a hearing or extend the timetable for the proceedings;
    • Interim contact needs of the child.
  • A contingent, early permanence analysis (by reference to a welfare and proportionality analysis) including:
    • An analysis of the proposed placements, whether by family member/family friend; adoption; or other long-term care;
    • The way in which the long-term plan for the upbringing of the child would meet the current and future needs of the child, (including needs arising out of that impact of any significant harm, or likelihood of it);
    • Contact framework;
    • Any additional support that the placement will require from partner agencies.
  • Whether and if so what communication it is proposed there should be during the proceedings with the child by the court.

4.3 Parents’ Response

A document from either or both of the parents containing:

  • In no more than two pages, the parents’ response to the Threshold Statement;
  • The parents’ placement proposals including the identity and whereabouts of all relatives and friends they propose be considered by the court;
  • Information which may be relevant to a person’s capacity to litigate including information about any referrals to mental health services and adult services.

4.4 During the Proceedings

One of the questions for Court is whether or not a Finding of Fact Hearing should be listed. These hearings are required when there are specific questions to be answered in the course of the proceedings, without which, the Court cannot make a decision about the children. So, for example, if a child has suffered a physical injury whilst in the care of more than one person, it would be important for the Court to try to identify early in the proceedings, if possible, which carer had caused the injury. The answer to that question will determine the extent and nature of the assessments to be carried out. The Finding of Fact Hearing will take place as soon as he instructed experts have been able to report. The hearing will be conducted in a similar manner to the Final Hearing in each case, but it is extremely unlikely that the social worker will be required to give evidence as; generally, they will not have direct knowledge of the facts being considered.

5. Flexible Powers of the Court

Although the Public Law Outline sets out a prescribed set of stages, it also provides for flexibility at any stage of the proceedings. Steps, which the court will ordinarily take at the various stages of the proceedings, may be taken at another stage if the circumstances of the case so merit.

The flexible powers of the court include the ability for the court to cancel or repeat a particular hearing, to give directions without a hearing including setting a date for the Final Hearing (or a period within which the final hearing will take place), or to take oral evidence at the Case Management Hearing, Further Case Management Hearing or Issues Resolution Hearing. Where it is anticipated that oral evidence may be required at the Case Management Hearing (‘CMH’), Further Case Management Hearing (‘FCMH’) or Issues Resolution Hearing (‘IRH’), the court must be notified well in advance and directions sought for the conduct of the hearing.

Where a party has requested an urgent hearing:

  1. To enable the court to give immediate directions or orders to facilitate any case management issue which is to be considered at the CMH; or
  2. To decide whether an ICO is necessary.

The court may list such a hearing at any appropriate time before the CMH and give directions for that hearing. It is anticipated that an urgent preliminary case management hearing will only be necessary to consider issues such as jurisdiction, parentage, party status, capacity to litigate, disclosure and whether there is, or should be, a request to a Central Authority or other competent authority in a foreign state or consular authority in England and Wales in an international case. It is not intended that any urgent hearing will delay the CMH.

It is expected that full case management will take place at the CMH. It follows that the parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 – Case Management Hearing. A FCMH should only be directed where necessary and must not be regarded as a routine step in proceedings.

6. Case Management Hearing

A greater emphasis is placed on the first hearing, Case Management Hearing. It is vital that the first Case Management Hearing is effective in order to meet the 26-week deadline.

The first Case Management Hearing should take place not before Day 12 and not later than Day 18.

It is expected that full case management will take place at the Case Management Hearing. The parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 – Case Management Hearing. A Further Case Management Hearing (‘FCMH’) should only be directed where necessary and must not be regarded as a routine step in proceedings.

7. The Timetable for the Child and the Timetable for Proceedings

7.1 The Timetable for the Child

The Timetable for the Child is the timetable set by the court which takes into account dates which are important to the child’s welfare and development.

The Timetable for the Proceedings is set having particular regard to the Timetable for the Child, and the Timetable for the Child needs to be reviewed regularly. Where adjustments are made to the Timetable for the Child, the Timetable for the Proceedings will have to be reviewed consistently with the aim of resolving the proceedings within 26 weeks or the period of time specified by the court. If proceedings can be resolved sooner than 26 weeks, then they should be.

Examples of the dates the court will take into account when setting the Timetable for the Child are the dates of:

  • Any looked after review;
  • Any significant educational steps, including the child taking up a place at a new school and, where applicable, any review of a statement of the child’s special educational needs;
  • Any health care steps, including assessment by a paediatrician or other specialist;
  • Any review of local authority plans for the child, including any plans for permanence through adoption, Special Guardianship or placement with parents or relatives;
  • Any change or proposed change of the child’s placement;
  • Any significant change in the child’s social or family circumstances; or
  • Any timetable for the determination of an issue in a case with an international element.

Information about these significant steps in the child’s life must be provided in the Application Form and the social work statement, and this information must be updated regularly, taking into account information received from others involved in the child’s life such as the parties, members of the child’s family, the person who is caring for the child, the children’s guardian, the Independent Reviewing Officer, the child’s key social worker and any Central Authority or competent authority in a foreign state or a consular authority in England and Wales in a case with an international element.

Where more than one child is the subject of the proceedings, the court should consider and will set a Timetable for the Child for each child. The children may not all have the same timetable, and the court will consider the appropriate progress of the proceedings in relation to each child.

Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should where practicable take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the Timetable for the Child. The time limit of resolving the proceedings within 26 weeks applies unless a longer timetable has been set by the court in order to resolve the proceedings justly. In these proceedings, early disclosure and listing of hearings is necessary.

See also Protocol and Good Practice Model: Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Direction Hearings (October 2013).

7.2 The Timetable for the Proceedings

The court will draw up a Timetable for the Proceedings with a view to disposing of the application:

  • Without delay; and
  • In any event, within 26 weeks beginning with the day on which the application was issued.

The court will have regard to:

  • The impact which the timetable or any revised timetable would have on the welfare of the child; and
  • The impact which the timetable or any revised timetable would have on the duration and conduct of the proceedings.

The court will use the Timetable for the Child to assess the impact on the welfare of the child, and to draw up and revise the Timetable for the Proceedings.

A standard timetable and process is expected to be followed in respect of the giving of standard directions on issue and allocation and other matters which should be carried out by the court on issue, including setting and giving directions for the Case Management Hearing.

7.3 Extensions to the Timetable for Proceedings

Having regard to the circumstances of the particular case, the court may consider that it is necessary to extend the time by which the proceedings are to be resolved beyond 26 weeks, but may do so only if it considers that the extension is necessary to enable it to resolve the proceedings justly. This may be on application or the court’s own initiative. Extensions are not to be granted routinely and require specific justification. When deciding whether to extend the timetable, the court must have regard to the impact of any ensuing timetable revision on the welfare of the child.

Applications for an extension should, wherever possible, only be made so that they are considered at any hearing for which a date has been fixed or for which a date is about to be fixed. Where a date for a hearing has been fixed, a party who wishes to make an application at that hearing but does not have sufficient time to file an application notice should as soon as possible inform the court (if possible in writing) and, if possible, the other parties of the nature of the application and the reason for it. The party should then make the application orally at the hearing.

The reason(s) for extending a case should be recorded in writing in the Case Management Order and orally stated in court, so that all parties are aware of the reasons for delay in the case. The Case Management Order must contain a record of this information, as well as the impact of the court’s decision on the welfare of the child.

An initial extension may be granted for up to eight weeks (or less if directed). A further extension of up to eight weeks may be agreed by the court. There is no limit on the number of extensions that may be granted. If a further extension is granted, the Case Management Order should:

  • State the reason(s) why it is necessary to have a further extension;
  • Fix the date of the next effective hearing (which might be a period shorter than a further eight weeks); and
  • Indicate whether it is appropriate for the next application for an extension of the timetable to be considered on paper. Extensions should generally be considered at a hearing – this can be by telephone or by any other method of direct oral communication.

8. Use of Experts

One of the threads of the overall aim of reducing the time taken to deal with proceedings is a change in the emphasis on, and a resulting reduction in, the use of expert evidence.

Revised Rules and Practice Directions came into force on 31 January 2013 relating to expert evidence. These were put onto a statutory footing by Section 13 of the Children and Families Act 2014.

The changes include:

  • A change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary to assist the court to resolve the proceedings justly’. This new test also applies to permission to instruct an expert and for a child to be examined or assessed for the purpose of the provision of expert evidence;
  • The inclusion of specific factors to which the court is to have particular regard in reaching a decision whether to give permission relating to expert evidence, including:
    • Any impact which giving permission would be likely to have on the child(ren);
    • The impact on the timetable and conduct of the proceedings;
    • The cost;
    • What other expert evidence is available (whether obtained before or after the start of the proceedings), and whether evidence could be given by another person, such as a social worker or the Children’s Guardian.
  • An application for permission to instruct an expert should state the questions which the expert is required to answer and the court will give directions approving the questions that are to be put to the expert.

Decisions about commissioning such evidence should be made early in the proceedings, usually at the Case Management Hearing.

9. The Issues Resolution Hearing

This is intended to ensure that the issues in the case have been narrowed by the assessments, and that only those matters which are truly in dispute are considered at the Final Hearing. At the Issues Resolution Hearing legal services must have provided to the court a full hearing bundle.

If, at the time of the Issues Resolution hearing there is agreement between the parties, it is possible for the Court to make the Final Order at that time.

If there is a measure of agreement, the Court may reduce the time estimate for the Final Hearing.

If the matter is proceeding to a contest, the arrangements for the Final Hearing will be confirmed. The Local Authority Legal Department will then have to prepare an updated hearing bundle of the evidence which will be used at the Court hearing and will draft the orders sought.

10. The Final Hearing

This should take place by Week 25. If the matter is contested the hearing will take the format of the giving of oral evidence, and the order of examination and speeches.

When agreement is not reached

Whenever the contest is heard, the hearing will proceed as follows:

  • Judge enter - all stand an then sit whenever they enter or leave;
  • Preliminary applications are made;
  • Local Authority solicitor outlines the background to the case and addresses the judge as to the law and the evidence which is relied upon;
  • Social Worker gives evidence on oath:
    • Stand to take the oath or affirmation, sit to give evidence;
    • Answer the LA solicitors questions (examination in chief):
      • Name;
      • Confirmation that you are a Social Worker with RMBC;
      • Confirmation that you signed a Statement and Care plan;
      • Confirmation tat the contents of each are true;
      • Details of any updating information not contained in the statement.
    • Social Worker is then tendered for cross examination.
  • Parent's solicitors ask questions of the Social Worker;
  • Child's solicitor asks questions of the Social Worker;
  • Judge asks questions of the Social Worker;
  • Local Authority Solicitor re-examines - i.e. Seeks clarification from the Social Worker in respect of any issues raised by the other Solicitors;
  • Parents then give evidence in the same way. Because they have not usually prepared statements, their examination in chief can be lengthy;
  • The LA Solicitor cross-examines the parents as appropriate, as does the Child's Solicitor;
  • The Children's Guardian (if appointed), gives evidence in the same way;
  • Parents solicitors sum up for the judge giving reasons why they oppose the making of the orders sought;
  • The child's Solicitor sums up the child's position, giving reasons why the orders should, or should not be made;
  • The judge considers their decision;
  • Upon return, the judge reads out their decision and the reasons for it.

The Social Worker needs to be present throughout the hearing and will be able to remain in Court throughout. Arrangements for other witnesses to attend will be made by the Legal Department in accordance with a timetable agreed between the parties. Witnesses who are not employed by Social Care Services, or are no longer directly involved with the case, will generally be required to remain outside the Courtroom until they are called to give evidence. At the end of their evidence, the Judge can, if requested, release them and they will be allowed to leave.

It frequently happens that a witness is in the middle of giving evidence when there is a break in the proceedings, either for lunch, overnight, or for some procedural business to be concluded. In such circumstances, the witness must not discuss their evidence with any other person before returning to the Witness box.

At the end of the hearing, it sometimes happens that judgment is reserved and a date is set for its delivery at a time convenient to the parties. It is not essential for the Social Worker to attend for the judgment, but it can be useful, particularly in terms of future work with the family concerned.

Contested Final hearings can become tense affairs, with the parties taking polarised positions. On occasions when the respondents are likely to become violent or threatening, the Court can be contacted in advance to ensure that appropriate security arrangements are made for the protection of the witnesses and Local Authority staff. If there are concerns about this, the Social Worker should liaise with the allocated solicitor about the security arrangements.

When agreement is reached

If agreement can be reached, following discussion between the parties, the Local Authority Solicitor will draft reasons for the decision, which can be adopted by the Judge if they are content with the agreement.

The Hearing will proceed as follows:

  • Judge enter - all stand an then sit whenever they enter or leave;
  • Preliminary applications are made;
  • Local Authority solicitor outlines the background to the case and indicated that agreement has been reached between he parties;
  • Social Worker gives evidence on oath if required:
    • Stand to take the oath or affirmation, sit to give evidence;
    • Answer the LA Solicitor's questions - usually limited to:
      • Name;
      • Confirmation that you are a Social Worker with RMBC;
      • Confirmation that you signed a Statement and Care Plan;
      • Confirmation that the contents of each are true;
      • Confirmation that you seek the order which has been agreed.
    • If, in the discussions, changes have been made e.g. to the level of contact, you will be asked to explain those changes.
  • The other solicitors and judge may then ask questions;
  • The parties' solicitors then address the judge briefly;
  • The judge consider the reasons which have been drafted;
  • The judge indicates whether they agree with the orders sought and the reasons, reading them out if necessary.

At the end of the hearing, it sometimes happens that judgment is reserved and a date is set for its delivery at a time convenient to the parties. It is not essential for the Social Worker to attend for the judgment, but it can be useful, particularly in terms of future work with the family concerned.

Contested Final hearings can become tense affairs, with the parties taking polarised positions. On occasions when the respondents are likely to become violent or threatening, the Court can be contacted in advance to ensure that appropriate security arrangements are made for the protection of the witnesses and Local Authority staff. If there are concerns about this, the Social Worker should liaise with the allocated solicitor about the security arrangements.

11. Good Local Authority Practice During Proceedings

Throughout the proceedings, the local authority must comply with court directions made regarding the timetabling and conduct of the case and the delivery of additional information and any specialist reports or up-dated assessments relevant to the local authority’s case which the court decides are necessary. This additional material should be delivered within the timeframes set by the court. Where compliance becomes problematic the local authority will notify the court without delay and in advance of the deadline and seek an extension.

Both the local authority social worker and the local authority advocate should be in command of the essential evidence and equipped to present this clearly and confidently to the court. The social worker should also be clear on the degree of certainty in the conclusions they have drawn and have to hand the key facts and dates to support their judgements.

Where significant new factors or circumstances bearing on the case emerge late in the proceedings, the local authority (or the children’s guardian or parent / lawyer) will draw these to the court’s attention, sharing the information with other parties at the earliest opportunity and seeking to reach a common approach on handling before the next court hearing.

Pending final decisions by the court, children’s need for stability and security remains a priority and will be reflected in any interim care plans, including plans for contact, which the local authority puts forward to the court. The local authority should ensure appropriate, high quality and stable placements are provided, where necessary, while a child’s future is decided.

It is essential that the social worker and the local authority solicitor have regular contact during the course of the proceedings, and that the progress of the case is kept under constant review.

This will include discussion of any disclosure issues, which may need to be the subject of directions by the Court. Any correspondence received by the social worker from solicitors/experts during court proceedings, should be forwarded as soon as possible to the local authority solicitor, together with detailed instructions for the reply.

The social worker must keep the local authority solicitor and children's guardian up to date with any changes in relation to the child during the proceedings, for example, placement, contact, school/education, health. Arrangements must not be made for any change to the child's placement without prior consultation with the Children's Guardian.

12. Case Management Checklist and Flowcharts

12.1 Pre-Proceedings

PRE-PROCEEDINGS
PRE-PROCEEDINGS CHECKLIST

Annex Documents are the documents specified in the Annex to the Application Form which are to be attached to that form and filed with the court:

  • Social Work Chronology;
  • Social Work Statement and Genogram;
  • The current assessments relating to the child and/or the family and friends of the child to which the Social Work Statement refers and on which the LA relies;
  • Care Plan;
  • Index of Checklist Documents.

Checklist documents (already existing on the LA’s files) are:

(a) Evidential documents including:

  • Previous court orders including foreign orders and judgments/reasons;
  • Any assessment materials relevant to the key issues including capacity to litigate, Section 7 and 37 reports;
  • Single, joint or inter-agency materials (e.g. health & education/Home Office and Immigration Tribunal documents).

(b) Decision-making records including:

  • Records of key discussions with the family;
  • Key LA minutes and records for the child;
  • Pre-existing care plans (e.g. child in need plan, looked after child plan and child protection plan);
  • Letters Before Proceedings.

Only Checklist documents in (a) are to be served with the application form.

Checklist Documents in (b) are to be disclosed on request by any party.

Checklist documents are not to be:

  • Filed with the court unless the court directs otherwise; and
  • Older than 2 years before the date of issue of the proceedings unless reliance is placed on the same in the LA’s evidence.

12.2 Stage 1 - Issue and Allocation

STAGE 1 ISSUE AND ALLOCATION
DAY 1 AND DAY 2

On Day 1 (Day of issue):

  • The LA files the Application Form and Annex Documents and sends copies to Cafcass/CAFCASS CYMRU;
  • The LA notifies the court of the need for an urgent preliminary case management hearing or an urgent contested ICO hearing where this is known or expected;
  • Court officer issues application.

Within a day of issue (Day 2):

  • Court considers jurisdiction in a case with an international element;
  • Court considers initial allocation to specified level of judge in accordance with the Allocation Rules and any President’s Guidance on the distribution of business;
  • LA serves the Application Form, Annex Documents and evidential Checklist Documents on the parties together with the notice of date and time of CMH and any urgent hearing;
  • Court gives standard directions on Issue and Allocation including:
    • Checking compliance with Pre-Proceedings Checklist including service of any missing Annex Documents;
    • Appointing Children’s Guardian (to be allocated by Cafcass/CAFCASS CYMRU);
    • Appointing solicitor for the child only if necessary;
    • Appointing (if the person to be appointed consents) a litigation friend for any protected party or any non-subject child who is a party, including the OS where appropriate;
    • Identifying whether a request has been made or should be made to a Central Authority or other competent authority in a foreign state or a consular authority in England and Wales in a case with an international element;
    • Filing and service of a LA Case Summary;
    • Filing and service of a Case Analysis by the Children’s Guardian;
    • Filing and Serving the Parents’ Response;
    • Sending a request for disclosure to, e.g. the police or health service body;
    • Filing and serving an application for permission relating to experts under Part 25 on a date prior to the advocates meeting for the CMH;
    • Directing the solicitor for the child to arrange an advocates’ meeting no later than 2 business days before the CMH;
    • Listing the CMH.
  • Court considers any request for an urgent preliminary case management hearing or an urgent contested ICO hearing and where necessary lists the hearing and gives additional directions;
  • Court officer sends copy Notice of Hearing of the CMH and any urgent hearing by email to Cafcass / CAFCASS CYMRU.

12.3 Stage 2 - Case Management Hearing

STAGE 2 - CASE MANAGEMENT HEARING
ADVOCATES’ MEETING
(including any litigants in person)
CASE MANAGEMENT HEARING
No later than 2 business days before CMH (or FCMH if it is necessary).

CMH: Not before day 12 and not later than day 18.

A FCMH is to be held only if necessary, it is to be listed as soon as possible and in any event no later than day 25.
  • Consider information on the Application Form and Annex documents, the LA Case Summary, and the Case Analysis;
  • Identify the parties’ positions to be recited in the draft Case Management Order;
  • Identify the parties’ positions about jurisdiction, in particular arising out of any international element;
  • If necessary, identify proposed experts and draft questions in accordance with Part 25 and the Experts Practice Directions;
  • Identify any disclosure that in the advocates’ views is necessary;
  • Immediately notify the court of the need for a contested ICO hearing and any issue about allocation;
  • LA advocate to file a draft Case Management Order in prescribed form with court by 11a.m. on the business day before the CMH and/or FCMH.

Court gives detailed case management directions, including:

  • Considering jurisdiction in a case with an international element;
  • Confirming allocation;
  • Drawing up the timetable for the child and the timetable for the proceedings and considering if an extension is necessary;
  • Identifying additional parties, intervenors and representation (including confirming that Cafcass/CAFCASS CYMRU have allocated a Children’s Guardian and that a litigation friend is appointed for any protected party or non-subject child);
  • Giving directions for the determination of any disputed issue about litigation capacity;
  • Identifying the key issues;
  • Identifying the evidence necessary to enable the court to resolve the key issues;
  • Deciding whether there is a real issue about threshold to be resolved;
  • Determining any application made under Part 25 and otherwise ensuring compliance with Part 25 where it is necessary for expert(s) to be instructed;
  • Identifying any necessary disclosure and if appropriate giving directions;
  • Giving directions for any concurrent or proposed placement order proceedings;
  • Ensuring compliance with the court’s directions;
  • If a FCMH is necessary, directing an advocates’ meeting and Case Analysis if required;
  • Directing filing of any threshold agreement, final evidence and Care Plan and responses to those documents for the IRH;
  • Directing a Case Analysis for the IRH;
  • Directing an advocates’ meeting for the IRH;
  • Listing (any FCMH) IRH, Final Hearing (including early Final Hearing) as appropriate;
  • Giving directions for special measures and/or interpreters and intermediaries;
  • Issuing the Case Management Order.

12.4 Stage 3 - Issues Resolution Hearing

STAGE 3 - ISSUES RESOLUTION HEARING
ADVOCATES’ MEETING
(including any litigants in person)
ISSUES RESOLUTION HEARING (IRH)
No later than 7 business days before the IRH. As directed by the court, in accordance with the timetable for the proceedings.
  • Review evidence and the positions of the parties;
  • Identify the advocates’ views of:
    • The remaining key issues and how the issues may be resolved or narrowed at the IRH including by the making of final orders;
    • The further evidence which is required to be heard to enable the key issues to be resolved or narrowed at the IRH;
    • The evidence that is relevant and the witnesses that are required at the final hearing;
    • The need for a contested hearing and/or time for oral evidence to be given at the IRH.
  • LA advocate to:
  • Notify the court immediately of the outcome of the discussion at the meeting;
  • File a draft Case Management Order with the court by 11a.m. on the business working day before the IRH.
  • Court identifies the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
  • Court considers whether the IRH can be used as a final hearing;
  • Court resolves or narrows the issues by hearing evidence;
  • Court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing;
  • Court gives final case management directions including:
    • Any extension of the timetable for the proceedings which is necessary;
    • Filing of the threshold agreement or a statement of facts/issues remaining to be determined;
    • Filing of:
      • Final evidence & Care Plan;
      • Case Analysis for Final Hearing (if required);
      • Witness templates;
      • Skeleton arguments.
    • Judicial reading list/reading time, including time estimate and an estimate for judgment writing time;
    • Ensuring Compliance with PD27A (the Bundles Practice Direction);
    • Listing the Final Hearing.
  • Court issues Case Management Order.

12.5 Public Law Outline 2014 (26 weeks) Flowchart

Click here to view the Public Law Outline 2014 (26 weeks) Flowchart.

13. Parallel Criminal Investigations

The Protocol and Good Practice Model: Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Direction Hearings (October 2013) provides guidance and good practice in relation to the disclosure of evidence  between local authorities, the police and the Crown Prosecution Service (‘CPS’):

  • The local authority should ensure that documents relating to family court proceedings are not included in the files to be examined by the police. Instead, the local authority will provide a list of such documents without describing what they are (e.g. by providing a copy of the redacted court index), in order for the police and/or the CPS to apply to the family court for disclosure;
  • The local authority can disclose to the police, documents relating to family court proceedings where the police officer to whom disclosure is made is a member of a dedicated child protection unit and/or is exercising powers of police protection under Section 46 of the Children Act 1989, and the disclosure is for the purposes of child protection and not for the purposes of the criminal investigation;
  • The local authority can disclose to the police, documents which are lodged at court or used in the proceedings which already existed prior to the commencement of the family court proceedings (e.g. pre-existing medical reports);
  • The text or summary of a judgment given in the family court proceedings can be included in the files to be examined by the police;
  • Where material is disclosed to the police, it cannot be further disclosed to any other parties (e.g. the CPS) for the purposes of the criminal investigation without the express permission of the family court.

14. Documents

Guidance to Arranging a Pre Proceedings Meeting SSCC363

Letter Before Proceedings SSCC366

Guide to Chairing a Pre Proceedings meeting  SSCC367

Contract of Expectations / Agreement for Pre Proceedings Meetings SSCC805

Letter of Intention to Issue Immediately SSCC757

Example (populated case study) Statement SSCC856

Guidance for Completing Statements

Social Work Evidence Template (SWET)

Social Work Evidence Template - Final Statement (SWET)

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