Cases involving children commenced by a Local Authority or another official body like the NSPC are Public Law proceedings under the Children Act 1989 and usually referred to as care proceedings.

This is a useful guide at the proceedings.

In proceedings under the Children Act the welfare of the child is the guiding principle.  Any decisions taken by the Court are based on what the Court considers to be in the child or children's best interests.

Local Authority Duties

Every Local Authority has a duty to safeguard and promote the welfare of children within its area who are in need, and insofar as this is consistent with that duty, promote the upbringing of such children by their families.  This is done by providing a range and level of services appropriate to those children's needs.  There is also a related duty to take reasonable steps to reduce the need to bring care proceedings.

Where a referral is made to Social Services, there is an expectation that within one working day, a decision will be made by Social Services as to what response is required.  The Local Authority will carry out any assessment of the needs of the child, and the capacity of his or her parents to respond appropriately to those needs.

Such an assessment will probably involve other professionals and agencies involved with the family, such as Health Visitors, GP's, School Teachers etc.  The purpose of the assessment is to establish whether there is reasonable cause to suspect that the child is suffering or was likely to suffer significant harm, and whether any emergency action is required to secure the safety of the child.

The Court may direct a Local Authority to investigate again child circumstances, and this is called a Section 37 Investigation.  It can be directed in any family proceedings whether the Local Authority are involved or not. The purpose of such an investigation is for the Local Authority to consider whether it should apply for a Care or Supervision Order, provide services or assistance for the child and their family, or whether to take any other action with respect to the child.

Where a child is subject to an Emergency Protection Order, in Police protection or where the Authority suspects the child is suffering or likely to suffer significant harm, it must investigate the child's circumstances. This is known as a Section 47 Investigation.

Section 20 Accommodation

Where the Local Authority do not feel that the child can remain living with the parents whilst such an assessment is carried out, they may ask the parents to agree to the child being accommodated under a Section 20 Agreement.  The Local Authority may not provide accommodation for the child if anyone with parental responsibility for the child objects.

Those without parental responsibility will not be consulted.  All mothers have parental responsibility, and married fathers also have parental responsibility.  Unmarried fathers who were registered on a child's birth certificate after 1st December 2003 do have parental responsibility otherwise they do not but  may obtain it either by the signing of the Parental Responsibility Agreement or by a Court Order.

Where a child is accommodated under Section 20, the person with parental responsibility has a right to remove the child at any time, as it is a voluntary agreement.  However, where the Local Authority are carrying out investigations, they are likely to bring immediate Court action if parents attempt to remove the child against their advice.

In most cases, parents are advised to co-operate with the Local Authority.  The onus is then on the Local Authority to show that that it has done everything reasonable to assist the child and its parents.

Emergency Protection Order

The Local Authority may apply for an Emergency Protection Order where they believe that a child may be at risk.  An Emergency Protection Order can authorise the Local Authority to remove a child from where he is (e.g. from his home) to a safe place, or to keep him in a safe place (e.g. a hospital).  To get such an Order, the Local Authority have to show that there  is reasonable  cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by and on behalf of the Local Authority, or does not remain where he is.  It may also apply for an EPO on the grounds that the enquiries the Local Authority are trying to make are being frustrated e.g. access to the child is being unreasonably refused.

The maximum duration of an Emergency Protection Order is generally eight days.  This can only be extended once for a further seven days.  An Emergency Protection Order can have supplementary provisions, e.g. requiring another person to disclose information as to the child's whereabouts, authorising the Local Authority to enter specified premises to search for the child or authorising a Police Officer to assist in the execution of the EPO i.e. removing the child from the home.   It can also include a Direction that the child must undergo a medical and psychiatric examination, can prevent contact with a particular person, and can include an exclusion provision which prohibits a particular person from entering the home address.

Care Orders

On the application of the Local Authority, the Court may make an Order:

1. Placing the child with respect to whom the application is made in the care of the designated Local Authority.
2. Putting him under the supervision of the designated Local Authority.

When the Local Authority makes an application for a Care or Supervision Order, the mother is a party to the proceedings, as is a father who has parental responsibility, or anyone with a Residence Order in respect of the child.   Fathers without parental responsibility will be notified about the Court proceedings and can apply to be joined to the proceedings.  Sometimes other family members who have been involved with the children can also apply to be joined as party to the proceedings if the Court agrees to this.

The child has their own solicitor who is appointed from a special panel as solicitors who represent children (the Children Panel).  The Court will also direct a Guardian to represent the child's interest.  The role of the Guardian is set out in more detail below.

The Law

The Local Authority will usually apply for an Interim Care Order at the first hearing.   Both you, the Guardian and the children's solicitors can make representations about this. If you do not consent to the Interim Care Order, there may have to be a contested hearing in order for the Court to decide whether or not there should be an Interim Care Order.  The advice given as to whether or not to consent to an Interim Care Order varies in every case depending on the individual circumstances.

The average duration of a care case is approximately 9 months, but this depends on the individual circumstances of each case and in some cases can be less or in excess of this.  There will be a succession of hearings between the first hearing and the final hearing, known as interim hearings.  At the outset of proceedings, the Court will lay down a procedural timetable setting out when parties should file statements and when and what reports are needed.   The purpose of the interim hearings is to ensure that work that is required to be done before the final hearing is completed, and to deal with any other issues as they arise.

The Threshold Criteria

• Before the Court can make a final Care or Supervision Order, it must be satisfied that
• The Children are suffering or likely to suffer significant harm and
• That the harm or likelihood of harm is attributable to:
  • The care given to the child is not what it would be reasonable to expect the parent to give him or
  • The children are beyond parental control.

This test for making the Care Order or Supervision Order is called the Threshold Criteria.  The time at which the Court should be considering the Threshold Criteria is either at the date of the final hearing of the Application for the Care and Supervision Order, or the moment at which the Applicants initiated the procedure for the protection of the child i.e. started the Court case.

Harm Means Ill Treatment or Impairment of Health and Developments

Development means physical, intellectual, emotional and behavioural development.

Health means physical or mental health, and ill treatment includes sexual abuse and ill treatments which are not physical.
 
The Local Authority has to prove that the Threshold Criteria are met i.e. that the child is suffering or is likely to suffer significant harm because of the care they are receiving or because they are beyond parental control.   The standard of proof is the ordinary standard i.e. on the balance of probabilities.

Unless all parties agree on a final Order, the final hearing is likely to last two or three days although can be more.   You will be expected to attend Court and give evidence at the hearing.  You will only have to give evidence at interim hearings if they are specifically listed for a contested hearing i.e. there is a particular issue in this dispute.  At the end of a contested final hearing, the Court decide what order to make and will give its reasons why.

Care Orders

If the Court decides to make a Care Order at the Final Hearing, then a Care Order remains in force until a child is 18.

During the course of the proceedings, the Local Authority have to consider if any members of  the child's extended family are able to care for child, (known as kinship carers),  should the Court make a Care Order at the final hearing.  If a relative thinks that the child should live with them then they can apply for a Residence Order from the Court, but this will need to be done before the final hearing.   They will need to seek independent legal advice in respect of this.

Sometimes the Local Authority wish to place the children with long term alternative carers.  The Local Authority intentions must be set out in a Care Plan before the final hearing.

Once the Care Order is made, parents with parental responsibility for the children continue to have responsibility for them.   The effect of a Care Order is that the Local Authority also obtains parental responsibility in respect of the child, and they can make day to day decisions about the care of the children, whether they are in foster care or in a children's home.   The Local Authority should consult and inform parents of decisions regarding the children's education, religious upbringing and medical treatment.

The Court can also make Orders about how often you see the children, both during proceedings and once a final Court Order has been made.   This is referred to as contact.

Supervision Orders

Depending on the facts of the case, the Local Authority may wish to apply for a Supervision Order rather than a Care Order.   A Supervision Order places the children under the supervision of a designated Local Authority.  This means that the children can reside at home but only under certain conditions, an Agreement will be drawn up between the parents nd the Local Authority.  Supervision Orders normally last for one year but can be extended to a total of three years.   A Social Worker supervises the family under the Order and should advise, assist and befriend the supervised child.

Adoption

If the Local Authority finally decide that the best option is for the child to be adopted, then they would have to return to Court for a further Order to allow them to do this.  The Care Order does not give them the right to consent to the child's adoption.   If an adoption order is made, the birth parents lose their parental responsibility and the child becomes the legal child of the adopters.

Parties involved

There may be several parties involved in Public Law proceedings.

The first of these will be the Local Authority (or, in some limited circumstances, the police or other authorised agency).  They are called the Applicant and will have decided to take proceedings in relation to a child (or children) about whom they have concerns.

The Social Worker involved in the case will normally attend Court on behalf of the Local Authority together with a legal representative.

The Respondents in the case will be the mother of the child/children involved and provided he is married to the mother or has Parental Responsibility, the father of the child/children.  It is possible for there to be several Respondents if there is more than one child involved and they do not share the same father, although in those circumstances the proceedings may be separated to avoid them becoming too complex.

If the father is not married to the mother of his child/children, or does not have Parental Responsibility then he will not automatically be a party to the proceedings, nor have the right to see the documents filed in the case, unless the father was named on the birth certificate after January 2004, in which case he will have parental responsibility automatically.  Care proceedings are extremely confidential and only those who are a party to the proceedings are allowed to see the documents and case papers. He can, however apply to be joined.  For this reason it is important that he is made aware of the proceedings.

If any other person wishes to be joined as a party e.g. a grandparent, step-parent or carer of the child then they will need to apply to the Court and consideration will have to be given as to whether it is in the child/children's interests for them to be made a party.

The child/children will also be a party to the proceedings and they will be legally represented.  A Solicitor will be appointed (often by the Court directly) to act for the child/children.  He/she will be completely independent.

The children's Solicitor will work closely with another representative appointed by the Court to represent the children's interests, called the Children's Guardian.

Role of the Children's Guardian

The Children's Guardian is an independent person who will visit the child/children and assess their needs.  The Guardian is responsible for filing a report with the Court setting out what they feel to be in the child/children's best interests e.g. whether they think the child/children should return to live with their parents or be placed with other carers on a permanent basis.

In the course of preparing his/her Report it is likely that the Guardian will want to visit all the parties involved and ascertain their views, meet the parents, the Social workers, read through the Local Authority file, and meet with the children, foster parents and any other professionals involved with the children.   It is very important that the parents co-operate with the Guardian as the Court often attaches a lot of weight to any recommendation made by the Guardian as to the outcome of the case.  This is because they are independent.  Ultimately however, the Guardian will give his/her own opinion as to what is in the child's best interests.  Sometimes this can be different to what the child wants itself. 

Procedure

The proceedings will commence in the Family Proceedings Court, unless they have arisen out of existing private law proceedings ongoing in the County Court.  In some circumstances the case may be transferred to a higher level such as a County Court or even the High Court.  In East London if cases are transferred up from a local Family Proceedings Court they invariably go to the Principal Registry of the Family Division which is in Chancery Lane, Holborn.

The type of case that might be transferred is one that seems complex e.g. it might require more than 4 days of Court time to be resolved, involve numerous parties or involve serious allegations of physical abuse.

The procedure for care cases is governed by the Protocol for Judicial Case Management in Public Children Act Cases. One of the main principles in Children law is that delay in deciding where a child will live etc is prejudicial, and consequently, the Protocol dictates that apart from in exceptional circumstances, care cases must take no longer than 40 weeks from start to finish. It sets out a timetable for how cases proceed.

Day 1 of the case is when the Applicant issues their application, and the Court fixes it for a first hearing, which must be within 6 days. They have to serve all parties with a copy of their application and a statement setting out their reasons for applying for an order in statement, to be served by day 3. The purpose of the first hearing is to decide what immediate steps are necessary to progress the case.

If the Respondent(s) do not agree with the Local Authority's application e.g. for a care order, a contested hearing will need to take place in which the Court will hear evidence and make a decision as to whether or not to grant an interim order. The Court only makes a final order at the end of the case. The Court will also decide whether the case needs to be transferred to a higher Court, and will make directions for the filing of evidence. It will timetable the case, which means it will fix all necessary hearings including the final hearing, to be heard by no more than two different judges throughout the case. Consideration will also be given to whether or not experts need to be instructed to prepare reports for the Court to help them reach a final decision, and a time table set for completing any assessments deemed necessary.

If the case is transferred to the County Court there will be an allocation hearing in that Court by day 11, and if it then needs to be transferred again to the High Court, there will need to be a further allocation hearing by day 15. The reality is that it is not always possible to have these hearings within the time limit set, although the Courts must make every effort to comply with the Protocol.

The next hearing will be the Case Management Conference, which must be between Day 15 and 60 (week 8), at which the Court and parties will consider what directions are necessary to ensure that the case is progressing and that any work necessary is done within the Court timetable. The legal representatives will have an Advocates Meeting before the Case Management Conference to try and agree the directions.

The next hearing is the Pre-Hearing Review, which must be heard by week 37. The objective is to identify and narrow the issues, and to ensure that the final hearing can go ahead and that all the necessary evidence is available to the Court. The Final Hearing will then take place by week 40, at which the Court will determine any remaining issues. If the parties are unable to reach an agreement as to the outcome, there will be a contested hearing at which evidence will be heard from the parties, including the Social Worker, Guardian, and any experts whose evidence is in dispute.

Please contact our Care Proceedings specialists Rajinder Garvey, Marcia Shields, Shaun Murphy or Bernie Huber for further advice.