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1.4.2 Court Proceedings

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.

This chapter should be read in conjunction with the Ministry of Justice Guidance: Preparing for Care and Supervision Proceedings, the Public Law Outline Procedure and Statutory guidance on court orders and pre-proceedings for local authorities (2014).

RELEVANT DOCUMENTS

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

Public Law Outline Procedure

AMENDMENT

This chapter was updated in March 2020 to reference and note the Family Court Justice Interim Guidance on Special Guardianship, Courts and Tribunals Judiciary (May 2019). (See Section 1, Introduction).

The first paragraph of Section 2, Starting Care Proceedings was updated in line with local practice.


Contents

  1. Introduction
  2. Starting Care Proceedings
  3. After the Issue of Care Proceedings
  4. Format of Care Plans filed in Care Proceedings
  5. Correspondence During Court Proceedings
  6. Parallel Criminal Investigations


1. Introduction

Under the Public Law Outline 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. The expectations of courts in relation to pre-proceedings work and local authority documentation are set out in detail in the Public Law Outline Procedure.

There is recognition of the possibility that potential Special Guardianship Order applicants can be identified late in care proceedings. This was addressed in Re-S (A Child) {2014} EWCC B44 (Fam) (para 33(ii) (c). Interim Guidance has now been issued by the Family Justice Council.

Interim Guidance on Special Guardianship

The Family Justice Council: Interim Guidance on Special Guardianship has been issued with the primary purpose of addressing cases where an extension to the 26 week time limit is required to more fully assess potential special guardians.

Where a full assessment is undertaken, it is to be expected that this will usually require a 3-month time scale. This promotes full checks being completed; an interactive approach with the applicant(s) to ensure their full understanding of the child’s needs and the tasks and challenges in meeting those needs until their 18th birthday.

Identified alternative potential carers should be identified at an early stage – including through pre-proceedings where possible and by convening a Family Group Conference.

The social work Statement must include potential carers via a genogram.

Where proceedings have commenced, all parties including the Guardian should file and serve a position statement in advance of the First Case management Hearing (CMH) to include the details of proposed carers for assessment by the local authority.

NOTE identification of carers should focus on the child’s interests, not on parents’ approval/disapproval.

Where the viability assessment is negative, the local authority must notify the subject of the assessment together with the procedure for any application to the court to seek leave pursuant to the Children Act 1989, S. 10(9) or to be joined as a party. Any challenge must be pursued promptly - the matter to be referred to the allocated judge, or other appropriate judge for urgent direction.

Special Guardianship Applicants Identified Late in Proceedings

This was addressed in Re-S (A Child) {2014} EWCC B44(Fam) (para 33(ii) (c)) in that a proposal for assessment must be realistic.

An extension beyond 26 weeks should be permitted ‘to enable the court to resolve the proceedings justly’.

The Interim Guidance also identifies that:

  • This would also include assessments of carers living in another country, via Children and Families Across Borders (CFAB);
  • Where more time is needed to consider both the quality of the relationships between the child and proposed carers and the stability of the (potential) placement. This will almost certainly lead to an extension of the timetable but this should be proportionate to the welfare criteria;
  • An approved court extension may require consideration of the legal framework where it may impact upon the child being placed with potential carers, e.g. using Section 8 of the 1989 Children Act where a placement cannot be made under Regulation 24 (Care Planning, Placement and Case Review (England) Regulations 2010). However, this should be carefully considered.


2. Starting Care Proceedings

Before a decision can be made to initiate Proceedings, the case must be presented at Legal Gateway panel and the approval of panel which is chaired by a Head of Service obtained.

N.B. Any decision to commence Care Proceedings should have regard to the requirements of the Public Law Outline - see Public Law Outline Procedure.

Where a child has suffered, or is likely to suffer, Significant Harm in the future it is the local authority’s duty to consider the evidence and decide what, if any, legal action to take. The information presented to the Child Protection Conference should inform that decision-making process but it is for the local authority to consider whether it should initiate for example Care Proceedings.

Where Care Proceedings are recommended, the social worker or his/her manager will seek the authority of the Designated Manager (Care Proceedings).

If authorised, the child's social worker will advise the child and the relevant family members of the decision.

The social worker and local authority solicitor will then prepare the documents that are required to be produced for Court. The care plan will set out the name of the Independent Reviewing Officer and their contact details.

The issues set out in the Public Law Outline checklist need to be addressed before the first Court hearing and dates by which any outstanding assessments can be completed must be ascertained. Consideration should also be given at this stage as to whether the case will be Twin Tracked, whether Foster to Adopt is a possible placement option and also as to when the case would be ready to go to the Agency Decision Maker should the Care Plan be one of adoption.


3. After the Issue of Care Proceedings

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 and also how contact is progressing in terms of the frequency and quality.

The Public Law Outline checklist will become a running document and completion of the Checklist will require regular liaison between the social worker, local authority solicitor and barrister (if instructed) during the course of the proceedings.

In addition 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, those with Parental Responsibility where appropriate and the court.


4. Format of Care Plans Filed in Care Proceedings

The Interim Care Plan and Final Care Plan, which must be exhibited to the social worker's Statement in Care Proceedings, should contain the information set out in Decision to Look After Care Planning Procedure, The Care Plan and Public Law Outline Procedure, Final Care Plan.

There must be a separate Care Plan for each child.

Where adoption is part of the Care Plan either as the preferred or contingency plan, legal advice should be sought as to the need for and timing of a Placement Order application. See Placement for Adoption Procedure as to the steps that are required prior to the filing of a Placement Order application.

The social worker and his/her manager must sign the Interim Care Plan. In addition the Designated Manager (Care Plans) must sign the Final Care Plan.


5. Correspondence During Court Proceedings

All correspondence received from solicitors for other parties during court proceedings must be passed to the local authority solicitor to deal with.

Where the local authority solicitor receives correspondence during court proceedings and requires the social worker's instructions for the reply, the letter will be copied to the social worker immediately upon its receipt and the social worker must give clear instructions to the solicitor as to the reply as soon as practicable.

In relation to any other contentious correspondence, including letters received from an expert received during court proceedings, the social worker must send the letter to the local authority solicitor as soon as possible, together with detailed instructions for the reply.


6. 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 and 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 which will necessitate the CPS making an application to the family court judge in the prescribed form.

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