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

RELEVANT 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

Public Law Working Group (PLWG) Recommendations to Achieve Best Practice in the Child Protection and Family Justice Systems - the President of the Family Division has expressed anticipation that, from the end of July 2021, courts will expect that every public law children case will accord with these Recommendations

Family Justice Resource Hub - Resources produced by sub-groups made up of sector representatives involved with the President of the Family Division's Public Law Working Group (PLWG).

Court Orders and Pre-proceedings (Research in Practice, funded by the DfE)

Social Work Evidence Template, abridged statement for use in short-notice hearings, and Guidance (updated 2021, in line with the recommendation made by the PLWG). The ADCS encourages all local authorities to use these templates, to which local authorities can add their logos.

Essex County Council's PLO Audit Tool

AMENDMENT

In April 2022 this chapter was revised throughout.

1. Introduction and Time Limits

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. 'In no case can an extension beyond 26 weeks be authorised unless it is 'necessary' to enable the court to resolve the proceedings 'justly'. Only the imperative demands of justice – fair process – or of the child's welfare will suffice'.
(Re - S (A Child) {2014} EWCC B44(Fam) (para 34).

See also: Section 9.3, Extensions to the Timetable for Proceedings.

This places an increased emphasis on pre-proceedings work and the quality of Assessments. 

Parallel planning for all alternatives concurrently alongside assessment planning reduces the likelihood of avoidable delay for the child(ren). It is important that alternative options are not discounted until it is absolutely clear that they are no longer relevant or required.

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: Adopt North East Regional Adoption Agency Procedures).

2. Public Law Working Group Best Practice Guidance

With effect from the end of July 2021, the existing provisions are complemented by Best Practice Guidance (BPG) from the Public Law Working Group (PLWG) - Recommendations to Achieve Best Practice in the Child Protection and Family Justice Systems.

The key themes of the Best Practice Guidance are:

  1. A local authority should give prior notice to Cafcass of the issue of care proceedings;
  2. Court listing of urgent applications with sufficient time for all parties to obtain advice/representation, other than in exceptional circumstances;
  3. New templates for letters before action, section 20 agreements, case summaries, position statements and advocates' meeting agendas;
  4. Each Designated Family Judge area should have a protocol on the wellbeing of staff working in the family courts;
  5. Short form orders, rather than the standard Case Management Order, should be used after the first hearing;
  6. Applications in respect of newborns and young infants should be the subject of strict case management and time limits;
  7. Where further time is required to determine the plan or placement which is in the best welfare interests of the child, consideration should be given to extending the 26-week time limit;
  8. The court may only grant permission for the instruction of an expert if it is determined to be necessary for a just and fair determination of the proceedings;
  9. The number of hearings per case should be limited to those hearings which are necessary for a fair and just conclusion to the proceedings;
  10. The final hearing should not be listed before an effective Issues Resolution Hearing; and
  11. There must be exceptional reasons to make a Care Order on a care plan of the child remaining in or returning to the care of the parent(s).

The Guidance stresses that the focus of work must be on the lived experience of the child and ensuring that the child's voice is heard throughout.

The Guidance stresses the importance of judicial continuity and there should be one, or at most, two identified judges per case.

3. Pre-Birth, Newborns and Infants

Public Law Working Group Best Practice Guidance: Support for and Work With Families Prior to Court Proceedings and Public Law Working Group Best Practice Guidance: the Application and Case Management provide that if the local authority is already involved with the expectant mother and/or the father, pre-proceedings work should commence as early as possible. Pre-proceedings can be initiated for an unborn child and should be held as early as possible, with timescales monitored closely. The identification of needs, and the provision of support, should happen as soon as possible. This may include, but is not limited to, support for the family, grants and housing.

Consideration should be given as to whether specialist advice is required about the timing of certain types of assessments, such as psychological assessments.

Planning in advance of a birth where proceedings are determined as required is essential.

If the local authority comes to an early view that proceedings will be issued on birth, then draft documents should be ready to send to lawyers before the child's birth. The parents should be provided with the copies of the approved draft documents at the earliest opportunity. Placement options should be considered prior to birth and discussed with parents e.g., parent-and-baby foster placements or fostering-to-adopt placements, so as to ensure that early permanence is achieved for babies, as appropriate.

Pre-birth planning in advance should include:

  • Ensuring parents have had the opportunity for legal advice prior to birth;
  • The offer of a Family Group Conference;
  • That where possible there is an agreement developed as to both what will happen to the baby upon birth prior to issue and timescales for issue;
  • And that notification to Cafcass is made of the likelihood of proceedings.

In planned proceedings, except in extremis where it is unsafe to do so, parents should be made aware of the proposed care plan for the baby prior to the birth, so that this can be the subject of clarification and negotiation outside of the court process, and so that there is an early opportunity to consider family alternatives to care, or family support, which might avert the need for emergency or short-notice proceedings.

Applications in respect of newborn babies and young infants should be the subject of strict case management directions and time limits. It is especially important that proceedings in respect of these children have the developmental timetable of the child in mind, and are concluded, whenever possible, within the 26-week limit. There will however be some cases, particularly relating to first-time parents, where parents are demonstrating their ability to respond in a sustainable manner to the advice and treatment provided to address concerns about their parenting, and where therefore proceedings may need to be extended. This may be particularly relevant in cases where parents are receiving and responding to treatment for drug and alcohol abuse, or young first-time parents who have been placed in parent and baby foster placements.

A High Court judgment (Nottingham City Council v LW & Ors [2016] EWHC 11(Fam) (19 February 2016)) 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 7, 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.

Where pre-birth involvement is a result of the mother's learning difficulties causing uncertainty as to her ability to meet the needs of the child once born, the Court of Appeal in D (A Child) [2021] EWCA Civ 787 stressed the importance of effective planning during the pregnancy for the baby's arrival, and of taking adequate steps to ensure that the mother understands what is happening and is able to present her case.

4. Care Order on a Care Plan of the Child Remaining at Home

The PLWG Best Practice Guidance: the Application and Case Management states that, whilst there may be good reason at the inception of care proceedings for a child to remain in the care of their parents and subject to an Interim Care Order pending the completion of assessments, there should be exceptional reasons for a court to make a final Care Order on the basis of a plan for the child to remain in the care of their parents. The Guidance makes clear that a Care Order must not be used as a vehicle for the provision of support and services. A means/route should be devised to provide these necessary support and services without the need to make a care order. Consideration should be given to the making of a Supervision Order, which may be an appropriate order to support the reunification of the family.

It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a Care Order but that, nevertheless, the risks are judged as being capable of being managed with a Care Order being made in favour of the local authority with the child remaining in the care of the parents. A Care Order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.

5. Pre-Proceedings

See also: Public Law Working Group Best Practice Guidance: Support for and Work With Families Prior to Court Proceedings.

5.1 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.

Every step of the pre-proceedings process should be tailored to the particular needs of the child(ren) and their family. Consideration should be given as to whether a parent needs an Advocate or an interpreter.

A multidisciplinary approach will bring about better outcomes for the children. If adult social care, housing, education or health services are involved and hold relevant information about the family then this should be used as a basis for any necessary further assessments without starting again from scratch.

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. Having considered the work and assessments that have already been undertaken, assessors should be chosen in advance. Consideration should be given to how investing in specialist services at this stage may avert the need for care proceedings and/or serve to better understand whether care proceedings are still required.

Family Group Conferences and the identification and assessment of Connected Person carer placements, if appropriate (NOTE: identification of carers should focus on the child's interests, not on parents' approval/disapproval).

See Family and Friends Care Policy.

  • 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 their age and understanding) is kept aware of what is being proposed and that their views are heard. This may include by way of an Advocate for children and/or for parents where there are issues of Capacity (see Capacity Guidance);
  • Legal Gateway/Planning Meetings – see Legal Gateway/Planning Meetings Procedure.

5.2 Legal Planning Meetings

A senior manager should decide in conjunction with the team manager if it is appropriate to convene a Legal Planning Meeting for a family, to consider the threshold for pre proceedings or proceedings - see Legal Gateway/Planning Meetings Procedure. The social worker should complete the LPM paperwork (AKA Legal Gateway Panel Document) and send it to their manager for approval. Once approval is given by the manager the paperwork should be sent to the LPM legal inbox: childcare.lpm@northumberland.gov.uk.

The LPM paperwork should follow the signs of safety model within the paperwork and this will be the format of the meeting.

The proposed plan should also be detailed within the paperwork.

The LPM is then allocated to a solicitor who contacts the social worker to arrange a legal planning meeting, which must include the team manager.

5.3 Legal Gateway Panel

Following the legal planning meeting if the view is that legal action should be taken, the LPM paperwork needs to be submitted to the PA for Head of Service by Friday lunchtime in time for the Legal Gateway Panel which meets every Tuesday and is chaired by the Head of Service. The team manager will present the case to the panel, however, social workers can attend if they wish.

At the Legal Gateway Panel, 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.

If the decision is taken at the Legal Gateway Panel to undertake a formal pre-proceedings process, the local authority will send to the parents/those with Parental Responsibility either:

  • A letter before proceedings which states that proceedings are being contemplated; or
  • A letter of issue which states that proceedings are being initiated.

(See Appendix E3: Principles for Letter Before Proceedings and Appendix 1: Letter of Issue).

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. See: Section 3, Pre-Birth, Newborns and Infants.

5.4 Letter Before Proceedings

The Letter Before Proceedings (see Appendix E3: Principles for Letter Before Proceedings) is the formal written notification that proceedings are likely. It should set out:

  • A summary in simple language of the local authority's concerns in the format of the danger statements;
  • 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 5.5, Pre-Proceedings Meeting).

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.

This letter should be shared with parents within 7 days of Legal Gateway Panel and the meeting held within 14 days of Legal Gateway Panel.

5.5 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.

The aim of this meeting is to:

  • Ensure the parents have understood the PLO letter and the reason for the meeting;
  • Ascertain the parents' understanding of the concerns the local authority holds about their children;
  • Review the current plan to see if there are points on the plan that the parents agree will provide the most immediate change/safety for their children;
  • Describe what support the local authority will provide to the parents while they focus on the immediate change work;
  • Discuss and agree any additional assessment work and the timetable for this work.

At this meeting, the local authority should:

  • Agree a revised plan for the child, is minuted and shared with the parents and their legal representatives, 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. The child's plan should be reviewed within 6 weeks of the meeting to ensure that sufficient progress is being made.

5.6 Working and Agreeing the Plan with the Family

It is crucial that the parents clearly understand this process and what is expected of them. It is important to consider learning disabilities and/or mental capacity. Parents may require the support of an advocate or an intermediary or an interpreter if English is not their first language. Older children will also need to be supported to understand this process and what it will involve. The Cafcass FJYPB has developed some principles of working with children during pre-proceedings (see FJYPB Top Tips for working with Children and Young People). All dates for appointments must be agreed and parents supported to keep them. Missed appointments can impact on the quality of the assessment, the effectiveness of support and lead to avoidable delay. Concerns about lack of engagement by parents should be addressed in a timely way and communicated through legal representatives too. Missed appointments should be re-booked, where appropriate. An open and honest dialogue should be encouraged between the parents and anyone who is supporting them and/or who may be considered as alternative carers.

Letters of instructions to any experts are seen and agreed by parent's legal representatives, where they have legal representation.

5.7 Duration of Pre-proceedings Process

The duration of the pre-proceedings process is dependent on lots of different factors, from the child(ren)'s need to the number of professionals involved. There are no statutory time limits, however, the duration should be agreed in advance of starting the process. This process will also produce crucial evidence that may be used if any proceedings are issued. Therefore, it is important that the assessment is up-to-date, relevant and comprehensive. Generally, this process should not continue for longer than 16 weeks. However, the needs and circumstances of each child and family differ. All pre proceedings are monitored at the monthly tracking meetings.

The progress of this pre-proceedings stage should be reviewed monthly in supervision by the social worker and their manager. The frequency of pre proceeding reviews will depend on the needs of each child and should be agreed when discussing the draft PLO plan, the Best Practice Guidance suggesting reviews at six- eight weeks or at the half-way point. There should be a discussion with the allocated solicitor prior to each pre proceedings review meeting.

5.8 Record Keeping

Keeping an accurate record of the agreed PLO plan, the status of assessments in progress and/or outcomes is vital. This is a very important record that can inform future decision-making processes. A recommended template of such a plan can be found at Appendix E2. Sample Assessment Agreement.

It is good practice to have regard to the principles set out in that Guidance at Appendix E3: Principles for Letter Before Proceedings when recording progress too. All assessments should be recorded in formal reports. If court proceedings are contemplated, save in emergencies, a completed and signed assessment agreement should be served with the application to the court.

5.9 Outcome of Pre-proceedings Process

The outcome of this pre-proceedings process should be clearly and succinctly summarised at the end of the PLO process. The social worker, their manager and the allocated solicitor at the pre meeting discussion should consider the progress of the plan and threshold. If it is decided that the plan has been achieved and the threshold is no longer met the team manager shall speak to the senior manager prior to the pre proceedings meeting to get approval to end the process. However, if the concerns escalate and no progress has been made, following the pre meeting discussion, there will be discussion between the team manager and senior manager about returning the case to Legal Gateway Panel to consider initiating proceedingsat. If the decision to issue proceedings is taken, then the parent(s) should be informed of this in writing.

The PLWG Best Practice Guidance sets out an expectation of full exploration by the local authority of what can be done to avoid court proceedings. It is acknowledged that where there is:

  • Non-engagement or engagement but risks persist;
  • The impact of the identified concerns has worsened;
  • The child's safety demands it when risks cannot be managed with child remaining in the parent's care it is highly likely that the matter will need to be put before the court.

6. Starting Care or Supervision Proceedings

See also: Public Law Working Group Best Practice Guidance: the Application and Case Management.

Before a decision can be made to initiate Care or Supervision Proceedings, the approval of the Legal Gateway Panel 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 Appendix 1: Letter of Issue.

The social worker and local authority solicitor will then prepare the documents that are required to be produced for Court and will meet to agree a proposed timetable for the court.

In some cases, the level of concern about a child's welfare may require rapid and sometimes immediate recourse to the courts. If this is the case the senior manager will need to seek permission from the Head of Service and the case will be brought before Legal Gateway Panel the following Tuesday. 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.

See also Section 8.2, Urgent Hearings.

The local authority shall provide Cafcass with advance notification of the proposed issue of proceedings at the time the decision to issue is taken.

7. Documentation

7.1 Local Authority Documentation

Documents to be Filed with the Court

(Note that some courts may require electronic submissions. Your legal department will be able to advise).

See: General Guidance on Electronic Court Bundles.

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

  • Application C110A;
  • The social work Chronology;
  • The SWET and Genogram – including any early identification of Connected Carers;
  • 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;
  • Interim Care Plan for each child;
  • Index of Checklist documents;
  • Where the case is issued urgently the short SWET should be used;
  • The child's birth certificate (where available) shall be included as a core document in the court bundle at issue or, where it is not available at issue, in the court bundle for the first Case Management Hearing. In the case of foreign national children without a birth certificate, a copy of the biometric page of their passport(s) or their identity documentation should be included.

Early case management directions are considered and, where appropriate, given at all urgent hearings (Appendix F7. ICO/Case Management Checklist).

Click here to view the Social Work Evidence Template, abridged Statement for use in short-notice hearings, and Guidance (updated 2021, in line with the recommendation made by the PLWG).

The SWET must contain details of pre-proceedings assessments with associated analysis and set out the support that has been provided to the child/family.

If the case was closed in the past to children's services, the statement should explain why the case was closed. The statement should also include whether the Family Group Conference (FGC) has taken place, whether there were any previous proceedings and whether the child is, or was, accommodated under section 20. The statement must include the view of the Independent Reviewing Officer (IRO) which should be provided by the IRO directly.

Principles

The filing and service of documents must focus on what is relevant, central and key, rather than what is peripheral or historical. Local authority materials are expected to be succinct, focused on analysis rather 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 2 years. Documents need not be served or listed if they are older than 2 years before issue of the proceedings, unless reliance is placed on them in the local authority's evidence.

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'.

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 s31(2) of the Children Act 1989, limited to no more than 2 pages.

Interim Care Plan

A short-form Interim Care Plan should be limited to the issues relevant to interim planning which include where the child shall live, proposed contact, any change to the school/nursery and the services to be provided to the child and family. This must be signed by the social worker and team manager.

Final Care Plan

It is important that the Care Plan records information which will help the child, parent or the child's carer understand why decisions have been or are being made.

The Final Care Plan will need to be signed by the social worker, team manager and senior manager.

8. Court Hearings

8.1 Number of Hearings

The judiciary and practitioners need to be more acutely aware of:

  1. Whether a further hearing is necessary and, if so, why; and
  2. If the directions proposed to be made are necessary for the fair conduct of the proceedings and are proportionate to the identified issues in the case. Mere inactivity, oversight or delay is never a just cause for a further hearing and a concomitant delay in concluding proceedings.

In order to reduce the number of hearings and to ensure compliance with the 26- week limit it is important that the following issues are addressed at the earliest possible stage of the proceedings:

  • The identity and whereabouts of the father and whether he has parental responsibility for the child, including the potential need for DNA testing;
  • The obtaining of DBS checks;
  • The disclosure of a limited number of documents from the court bundle to family and friends who are to be the subject of viability assessments in order to ensure the same are undertaken on an informed basis;
  • The need to identify at an early stage those family or friend carers who are a realistic option to care for the child (thus avoiding scenarios where significant resources are devoted to lengthy assessment of numerous individuals who are not a realistic option for the child).

Practitioners are required to consider consensual and court-approved applications which could be dealt with by a judge on paper or by email application. Consideration should be given to the use of video or telephone hearings.

8.2 Urgent Hearings

Urgent hearings will be listed only in exceptional circumstances, and steps should be taken throughout to negate the need for urgent hearings to ensure that all parties have adequate time to prepare for hearings.

Parents are to be advised, except in extremis and where it is unsafe to do so, of the proposed care plan.

In pre-birth cases when proceedings are going to be issued at birth, the application and supporting documents should be drafted in advance to prevent avoidable delay in the issue of proceedings.

With urgent cases, the initial social worker's statement must set out the evidence of urgency and why the legal test for removal is met. A separate short statement is recommended for urgent cases with the full SWET to be completed and filed by the Case Management Hearing.

If there is an urgent Interim Care Order hearing, the Guidance encourages the making of case management directions that can progress the proceedings at the earliest opportunity, without any prejudice to the respondents. Issues should be identified at this stage and disclosure sought accordingly (police disclosure is an obvious example). The local authority shall commence assessments and if family members are identified and proposed as alternative carers, viability assessments should be undertaken without delay.

The Public Law Working Group Best Practice Guidance: the Application and Case Management contains Appendix F3: Information Sheet for Emergency/Urgent Applications, to be completed by the local authority solicitor and sent to the court with any application in which the local authority seeks an emergency/urgent hearing, and Appendix F4. Advocates' Meeting Minute: Urgent/Short-notice Hearing.

8.3 Fact Finding Hearings

A fact-finding hearing should only deal with those issues which inform the ultimate welfare outcome for the child. It should be rare for more than six issues to be relevant.

Save for exceptional cases, Children's Guardians should be excused from attending these hearings in whole or in part (for example to hear the evidence of a particular witness which may be advantageous to the resolution of any welfare hearing).

8.4 Case Management Hearing

A great emphasis is placed on the first hearing, Case Management Hearing (CMH). 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. A Further Case Management Hearing ('FCMH') should only be directed where necessary and must not be regarded as a routine step in proceedings.

An agreed minute of the Advocates' Meeting shall be filed as part of the case management documentation in advance of the Case Management Hearing.

Templates for the Advocates' Meeting Minutes are at Appendix F4 – F6.

Where an Advocates' Meeting has taken place before a hearing and the parties are agreed on the way forward and the orders the court will be invited to make, a composite document setting out the core reading for the judge, the draft orders proposed, and a summary of the parties' positions and issues shall be provided to the court by the local authority by no later than 4pm the working day before the hearing.

Both the identity and whereabouts of the father together with parental responsibility status must be addressed and accordingly consideration of whether DNA testing is required.

The parties must also consider whether the FGC has taken place or now needs to be convened.

Consideration should be given to disclosing limited documents to proposed alternative carers so they can engage with the assessment process on an informed basis.

Immigration issues should also be identified at this early stage, and any uncertainty about a child's immigration status must be resolved.

8.5 Issues Resolution Hearing

The final hearing should not be listed before an effective IRH has taken place unless there are, unusually, cogent reasons in a particular case for departing from this practice. An IRH needs to be allocated sufficient time. The timetabling for evidence in advance needs to provide for an Advocates' Meeting at least two days in advance, and the advocates need to be properly briefed with full instructions for that meeting.

For an IRH to be effective, the following is required:

  1. Final evidence from the local authority, respondents and Children's Guardian (exceptionally, an IRH may be held with a position statement setting out the CG's recommendation before the final analysis is completed);
  2. The parents/other respondent(s) attend the hearing;
  3. The position in relation to threshold/welfare findings is crystallised so the court is aware of the extent to which findings are in issue and determines which outstanding findings/issues are to be determined;
  4. The court determines any application for an expert to give oral evidence at the final hearing;
  5. The court determines and the Case Management Order records which witnesses are to give evidence at the final hearing (all current witness availability should be known);
  6. The court determines the time estimate;
  7. A final hearing date is set;
  8. Where there is a delay before the final hearing date, directions are given for updating evidence and a further IRH before the final hearing.

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

9.1 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 the child's Education, Health and Care Plan;
  • 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, including where there is an application for Special Guardianship Order (see Timetabling and timescale for full family and Friends Assessments (Family Justice Council));
  • 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).

9.2 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.

9.3 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 8 weeks (or less if directed). A further extension of up to 8 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 8 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.

10. Use of Experts

Rules and Practice Directions relating to expert evidence were put onto a statutory footing by section 13 of the Children and Families Act 2014:

  • The test for permission to put expert evidence before the court is that it should be 'necessary to assist the court to resolve the proceedings justly'. This 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;
  • There are specific factors which the court should give particular regard to when 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.

There are certain categories of expert evidence where the court may more readily find that expert evidence is necessary to ensure the just and fair conduct and determination of the proceedings:

  • DNA tests and evidence to establish paternity;
  • Hair-strand and blood tests and evidence to determine alcohol consumption and/or drug use;
  • Cognitive assessments to advise on the capacity of a parent to (a) conduct litigation; and (b) participate effectively in the proceedings (i.e. the need to instruct an intermediary);
  • In a case of alleged non-accidental injury, forensic medical experts on causation.

In all other applications for permission to instruct any expert (for example, an independent social worker or a psychologist) the court should scrutinise the application with rigour to assess whether or not the expert assessment is necessary, including where the parties are agreed on the instruction of an expert.

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

11. Expectations of the Local Authority by the Court

Timetabling and conduct of the case - 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.

Interim placements - 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.

Communication - 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.

Recording - the Family Court, in the case of RE M and N (Children) (Local authority gathering, preserving and disclosing evidence) made clear the need for good practice in relation to note-taking and record-keeping, and disclosure of relevant evidence to all parties:

  • Social workers/practitioners must make contemporaneous notes which form a coherent, contemporaneous record. The notes should be legible, signed and dated and record persons present during the meeting/conversation in question. The notes should be detailed and accurately attribute descriptions, actions and views etc. Sketches/diagrams may be helpful in establishing the veracity of explanations given, e.g. in relation to how injuries were sustained;
  • Formal case-notes based upon these contemporaneous notes must be created as soon as possible in order to reduce the potential for inaccuracy/faulty recall as a result of delay. The original notes should be retained and be available to the court if required. Legal advice should be sought as to the need for disclosure of these notes to other parties in the case. If the notes constitute 'material evidence', then they must be disclosed;
  • The local authority must ensure full disclosure of all material evidence to all relevant parties at the earliest opportunity. This includes ensuring that expert witnesses have had sight of one another's evidence – a full picture must be presented to the expert witnesses in the case.

See: Special Guardianship Orders - The Family Justice Council: Guidance on Special Guardianship.

  • The importance of the Pre-proceedings stage (see: Section 5, Pre-Proceedings);
  • The issue of delay - there are often tensions with the court 26 week timetable when seeking the best outcome for the permanent placement for the child, particularly with regard to potential applicants: for example, where 'a realistic family carer' emerges late in proceedings; where there has been limited or no contact between the applicant and the child and so the quality of this needs to be assessed; possible training needs for the special guardians; assessments of potential special guardians living in another country.
    It is expected a full assessment of potential special guardians will usually require a 3-month time scale and that a Special Guardianship Order may not be made for up to 12 months from the initial Application. However, decisions must be made on a case-by-case basis (see also: Timetabling and timescale for full family and Friends Assessments (Family Justice Council));
  • Quality of special guardian reports - all assessments/suitability reports should comply with the schedule set out in regulation 21 of the Special Guardianship Regulations 2005 (as amended 2016). Where local authorities commission assessments from independent social workers, it is essential that there is clarity about the standard of the assessment commissioned before it is filed;
  • The interim placement of the child - the identification of family members who, as a result of an initial assessment, are then considered as a prospective Special Guardian will raise a number of issues about the placement of the child in the interim.
    These issues will need to be addressed in the interim plan for the child. It must be considered that making an interim placement which does not develop into a long-term placement could have serious implications for the child.

12. 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.