This chapter is subject to review in line with the Revised Public Law Outline 2013.
Please read in conjunction with 'Requests to Appear at or Report to Criminal Courts or Private law Proceedings'.
This chapter should be read in conjunction with:
Court Reports in Adoption Procedure (re: Placement Orders and Adoption Orders)
Any decision to seek legal advice/involvement must be in line with Section 1, Access to Legal Services
For applications for Emergency Protection Orders, see Application for Emergency Protection Orders Procedure.
This chapter should be read in conjunction with the Ministry of Justice Guidance: Preparing for Care and Supervision Proceedings.
In September 2016, a link to the new document 'Requests to Appear at or Report to Criminal Courts or Private law Proceedings' was added to this chapter.This chapter remains under review.
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.
2. Access to Legal Services and Costs within Proceedings
The rising numbers of young children in Hertfordshire at risk of significant harm has led to a doubling of the numbers of children in care proceedings during the period from September 2009 to August 2010.
Legal services charge CS& SS by the minute for their time. This includes every phone call to the Help Desk, every letter written, every legal planning meeting (LPM) attended as well as all of the work checking statements, filing applications, attending court etc.
Social Workers and Team Managers must restrict and minimise contact with legal services in order to avoid unnecessary costs. This includes ensuring documents are checked for spelling and grammar, before being submitted to Child Litigation Unit.
Child Litigation Unit (CLU) must not be contacted for case directions; this should be sought from your Team Manager, Services Manager or Head of Service.
Before any legal planning meeting is arranged, the circumstances must be discussed with the GM. Only after the GM has agreed there is a prima facie case to indicate the threshold for significant harm has been met and the child is of an age and circumstance where CSF needs to share parental responsibility for the child, should a LPM be convened.
Asylum seeking and abandoned teens will very rarely need to be subject to care proceedings as s20 of the Children Act 1989 provides for their needs, in contrast young abandoned children who may achieve permanence via adoption should be subject to a LPM.
Any assessments required in care proceeding, unless subject to a 4 way split cost between Children's Services, parents and guardian, can only be agreed after approval by Head of Service regardless of which team is conducting the proceedings, as this is where the budget for legal services is held. This includes court requests for expert, residential or independent social work assessments.
3. Legal Planning Meetings
Where a child is suffering, 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 a child who is the subject of a Child Protection Plan becomes Looked After, the Child Protection Plan should form part of the child's Care Plan.
Before a decision can be made to initiate Care Proceedings, a Legal Planning Meeting must be held and the approval of the relevant Services Manager obtained. (The exception to this is when an Emergency Protection Order (EPO) is in force. Under these circumstances, a Legal Planning Meeting will be held in time to issue any necessary care proceedings and give 3 days notice of these prior to the expiry of the Emergency Protection Order).
Further detail can be found in the Legal Planning Meetings Procedure.
N.B. Any decision to commence Care Proceedings should have regard to the requirements of the Public Law Outline - see Public Law Outline Procedure.
Legal advice provided to Children Services is 'privileged information' and as such should not be made available to anyone viewing the files. Child Litigation Unit to add 'privileged information' to headings of all documents. Children Services should state in case notes that memos/emails/minutes are 'legal advice, privileged information' and place in Livelink form rather than just copy and paste into the casenote.
3.1 Expert Witness, or Expert Witnesses
The Services Manager should consider whether any expert witnesses are required, and if so why. The Head of Service must agree the plan for instructing expert witnesses within care proceedings.
4. Involvement of CAFCASS Children's Guardian
Working Together to Safeguard Children informs that; The responsibility of the Children and Family Court Advisory and Support Service (Cafcass), as set out in the Children Act 1989, is to safeguard and promote the welfare of individual children who are the subject of family court proceedings. It achieves this by providing independent social work advice to the court.
4A Cafcass officer has a statutory right in public law cases to access local authority records relating to the child concerned and any application under the Children Act 1989
That power also extends to other records that relate to the child and the wider functions of the local authority, or records held by an authorised body that relate to that child.
Where a Cafcass officer has been appointed by the court as a child's guardian and the matter before the court relates to specified proceedings, they should be invited to all formal planning meetings convened by the local authority in respect of the child. This includes statutory reviews of children who are accommodated or looked after, child protection conferences and relevant adoption panel meetings.
5. 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.
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.
If the social worker is aware of anything that is likely to cause delay to the Care Proceedings e.g. assessment not completed to timescale, then s/he must inform the Child Litigation Unit so the court may be informed.
Arrangements must not be made for any change to the child's placement without prior consultation with the Children's Guardian.
The IRO should also be notified of any change in the child's placement and any major changes in the child's care plan.
Social workers must provide a note of key unavailable dates to Counsel prior to each hearing and send a copy to Child Litigation Unit. Team Managers should monitor this through supervision. Child Litigation Unit should ensure this is effectively communicated to the court, and that the Social Worker is informed of changes to dates at earliest opportunity.
6. 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 and Care Planning Procedure, The 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.
A Placement Order application cannot be made with the approval of the adoption panel.The social worker and Services Manager must sign the Interim Care Plan. In addition the Head of Service must sign the Final Care Plan. The Care Plan cannot be changed without reference to the authorising manager. The Social Worker should own the reasoning for the care plan and the child focused outcomes being sought. The Team Manager should ensure this through Professional Supervision.
7. Correspondence During Court Proceedings
All correspondence received from solicitors for other parties during court proceedings must be passed to the Legal Services to deal with.
Where the Legal Services receive correspondence during court proceedings and require the social worker's instructions for the reply, the letter will be sent to the social worker upon its receipt and the social worker must give clear instructions to the solicitors as to the reply as soon as practicable.
In relation to any other contentious correspondence, including letters received from an expert during court proceedings, the social worker must send the letter to Legal Services as soon as possible, together with detailed instructions for the reply.
8. Travel Expenses During Court Proceedings and for Contact
- A parent/carer with Parental Responsibilities (PR), (or his or her advocate), frequently ask Children's Services to meet the parent/carers travel expenses to court. Children's Services are not responsible for meeting this cost. The parent/carer with PR 's legal representatives should apply for this cost from legal aid;
- A parent/carer with PR may incur costs traveling to a residential assessment regarding capacity to parent, and as part of care proceedings. Children's Services will meet this cost for parents on benefit or equivalent as part of the placement cost;
- A parent/carer with PR may incur costs traveling to an expert assessment as part of care proceedings. These costs should be met by parent's legal aid;
- Contact. Children's Services will pay contact costs for parents who are in receipt of state benefits only (including National Asylum Support Service (NASS) payments). Parents who are in employment will need to pay their own travel costs.
CSF will pay public transport costs or petrol costs at 14p per mile only to parents in receipt of benefits and this will be paid via Central Placement Service (CPS) to ensure consistency.
Long distance travel will be via coach. Hotel and subsistence costs for parents will not be payable except on severe hardship grounds, agreed in advance by CPS. Wherever possible, travel warrants will not be used and staff must contact CPS so the cheapest fares can be booked in advance.
No taxis will be used to transport parents to and from contact except on medical/disability grounds on receipt of a letter from the parent's GP. Taxis, where needed, can only be arranged via Brokerage Team.
9. 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.