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3.4.5 Private Law Applications (including Section 7 and Section 37 Reports)

RELATED READING

This chapter should be read in conjunction with the Introduction to the Child Care Litigation Team/Legal Information Pack for Social Workers.

Reference should also be had to the CAFCASS and ADCS Protocol on Private Law Reporting.

Any decision to seek legal advice/involvement must be in line with Section 1, Access to Legal Services and Costs within Proceedings of Court Proceedings Procedure.

Click here for the Forms used in Child Care Court matters.

AMENDMENT

Section 3, Section 8 Orders, was entirely revised in September 2014 and should be re-read.

In June 2015, minor amendments were made to Section 2, Section 7 Reports, Section 3, Section 8 Orders and Section 4, Section 37 Reports, and those sections should be re-read.


Contents

  1. Sharing Reports with the Parties
  2. Section 7 Reports
  3. Section 8 Orders
  4. Section 37 Reports


1. Sharing Reports with the Parties

In all Court proceedings, Social Workers should initially share their report with their line manager. Both Section 7 and Section 37 reports are reports for the court. Therefore these reports are written so the court can make an informed decision. The Parties should always be kept informed of the progress of the investigation and timescales. The report should be filed with the court and served on the parties at the same time, unless the court has asked the Local Authority not to serve the report. Where the court order stipulates that the report should be filed but is silent on whether it should be served, the matter of service should be clarified with the court as soon as possible. Legal advice should always be taken if there is any information which it does not appear to be possible to share with all parties.

Clearly there may be matters which remain in dispute between the Social Worker and the parents. The purpose of the Court is to be able to settle matters in dispute between the parties but if there are any factual inaccuracies these can and should be amended prior to the document being filed in Court. Social Workers need to ensure all reports they prepare are factually accurate.


2. Section 7 Reports

A Court may ask the local authority for a welfare report when they are considering any action within the context of the Children Act (s7 (1) (b) Children Act 1989).

The following headings should be used as a framework for compiling reports:

  • Background;
  • History of CS&SS/other agency interventions;
  • Profile of each child;
  • Profile of each adult who is party to the proceedings;
  • The views of the each child and each adult who is party to the proceedings;
  • Summary of the assessment;
  • Comments regarding the welfare checklist;
  • Comments regarding the general principal of "no order" i.e. is it better for the court to make an order;
  • Conclusions and the reasons for these conclusions.

The contents of the report must be discussed by the Social Worker with their supervisor and approved by their Service manager before it is then sent to the Child Care Litigation Unit who must then be asked to check the report.

Social Workers are asked by the Court to report to the court and are not entitled to legal representation by the Child Care Litigation Unit at the hearing, as the Local Authority is not party to the proceedings. They will need to take legal advice prior to presenting their report and appearing in Court where they may be supported by a Team Manager if needed.

The Social Worker will need to be present at Court to orally support the information contained in the report.


3. Section 8 Orders

The following are Section 8 Orders available to the Court:

  • Child Arrangements Orders - specify with whom the child is to live and/or with whom the child is to have contact;
  • Prohibited Steps Orders - states that no step which could be taken by a parent in carrying out their parental responsibilities, and is of a kind specified in the order, will be taken without consent of the Court;
  • Specific Issues Orders - an Order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of Parental Responsibilityin relation to a child;

Section 8 Orders will give directions on how the Order is to be carried out.

These directions must be complied with by any person:

  • In whose favour the Order was made;
  • Who is a parent of the child;
  • Who is not a parent but holds parental responsibility for her/him;
  • With whom the child is living.

Any Section 8 Order can be made as a result of any family proceedings. The Court can make these Orders as a result of an application being made by:

  • A person entitled to apply;
  • A person who has obtained leave of the Court to make an application;
  • The Court considering that an Order should be made although no application has been made.

The following people are entitled to apply for any Section 8 Order:

  • Any parent, guardian  or special guardian of the child. Any person who by virtue of section 4A has parental responsibility for the child;
  • Any person in who is named in a Child Arrangements Order that is in force with respect to a child as a person with whom the child is to live (formerly known as a residence order).

The following people are entitled to apply for a Child Arrangements Order:

  • Any parent (whether or not they have Parental Responsibility for the child), guardian or special guardian of the child;
  • Any person who by virtue of section 4A has parental responsibility for the child;
  • Any person named, in a Child Arrangements Order that is in force with respect to the child, as a person with whom the child is to live;
  • Any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family. This allows step-parents (including those in a civil partnership) and former step-parents who fulfil this criteria to apply as of right;
  • Any person with whom the child has lived for a period of at least three years. This period need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application; or
  • Any person who:
    • Has the consent of each of the persons in named in a Child Arrangements Order as a person with whom the child is to live;
    • In any case where a child arrangements order in force with respect to the child regulates arrangements relating to with whom the child is to live or when the child is live with any person, has the consent of each of the persons named in the order as a person with whom the child is to live;
    • In any case where the child is in the care of a local authority, who has the consent of that authority;
    • In whose favour a Child Arrangements Order has been made in relation to the ‘contact’ aspects and in that order has also been awarded Parental Responsibility by the court for the duration of the order (i.e. they would be able to apply for a Child Arrangements Order in relation to the ‘residence’ aspects);
    • In any other case, has the consent of those (if any) with parental responsibility for the child.
  • A local authority foster parent is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with him for a period of at least one year immediately preceding the application;
  • A relative of a child is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with the relative for a period of at least one year immediately preceding the application. (A relative is a child's grandparent, brother, sister, uncle or aunt (by full or half blood), or by marriage or civil partnership).

Any person who is not automatically entitled to apply for a Child Arrangements Order may seek leave of the court to do so. The granting of leave does not raise any presumption that the application will succeed.

In deciding whether or not to grant leave, the court will have particular regard to:

  • The nature of the proposed application for the Order;
  • The applicant’s connection with the child;
  • Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
  • Where the child is being looked after by a local authority:
    • The authority’s plans for the child’s future; and
    • The wishes and feelings of the child’s parents.

The following people have the right to seek the Court's leave to make an application for any Section 8 Order:

  • Child if the Court is satisfied that s/he has sufficient understanding to make the proposed Section 8 Order application;
  • A person who is, or was at any time within the last six months, a local authority foster carer of a child in care MAY NOT apply for leave to apply unless:
    • S/he has the consent of the authority;
    • S/he is a relative of the child; or
    • The child has lived with her/him for at least one year preceding the application.
  • Anyone else once the Court has considered:
    • The applicant's connection with the child;
    • Any risk there might be of the proposed application disrupting the child's life tom such an extent that s/he would be harmed by it; and
    • Where the child is looked after, the local authority's plans for the child and the wishes and feelings of the child's parents.

The Court will not accept an application for a Child Arrangements Order made by the local authority.

When determining any application for a section 8 order the Court is to presume, in respect of a parent, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.


4. Section 37 Reports

When, during any family proceedings, the question arises about the welfare of a child and it seems to the Court that it might be appropriate for a Care or Supervision Order to be made, then it will direct a local authority to undertake an investigation. The timescale for completing this report is usually 8 weeks but the court may give a shorter timescale depending on the circumstances.

During the investigation, the Social Worker will need to consider whether CS&SS should:

  • Apply for a Care Order;
  • Provide services or assistance for the child and her/his family;
  • Take any other action in relation to the child.

The order from the court should go straight to Child Care Litigation Unit, but if the order goes directly to CS&SS then as soon as a request arrives for a report, the Social Worker must inform the Child Care Litigation Unit in writing about:

  • The name of the child(ren) and date(s) of birth;
  • When the report has to be completed;
  • The Social Worker responsible for completing the report.

The following headings should be used as a framework for compiling reports:

  • Background;
  • History of CS&SS/other agency interventions;
  • Profile of each child;
  • Profile of each adult who is party to the proceedings;
  • The views of the each child and each adult who is party to the proceedings;
  • Summary of the assessment;
  • Comments regarding the welfare checklist;
  • Comments regarding whether the threshold criteria are met;
  • Conclusions regarding the general principal of no "order" i.e. whether it is better for the Court to make an order;
  • Conclusions and the reasons for these conclusions.

The contents of the report must be discussed by the Social Worker with their supervisor and approved by their service manager before it is then sent to the Child Care Litigation Unit who must be asked to check the report.

If the conclusion is that the threshold criteria appear to be met then a Legal Planning Meeting (see Legal Planning Meetings Procedure) will need to take place as early as possible, but no later than 1 week before the report is due to be filed. Refer to the Legal Information Pack for Social Workers.

If a Legal Planning Meeting recommends that care proceedings should be issued then the report will need to advise when an application will be issued.

If the conclusion is to provide services, then a detailed description of those services will need to be added to the report.

If the conclusion is to take no further action but review the family circumstances, then the Court will need to be informed when this review will take place.

End