Public Law Outline
An updated Public Law Outline came into effect on 22 April 2014, alongside the statutory 26-week time-limit for completion of all but exceptional care and supervision proceedings under the Children and Families Act 2014.
RELATED GUIDANCEPublic Law Outline (2014)
In March 2015, revisions were made to Section 1.4, Pre Proceedings with Specific Required Action, but this chapter remains under review.This chapter is currently under review.
1. Public Law Outline
The Public Law Outline: Guide to Case Management in Public Law Proceedings came into force with effect from 6th April 2010. This followed on from previous statutory guidance for local authorities effective from 2008, which resulted from the Review of the Child Care Proceedings System in England and Wales.
A Pilot Scheme of a revised Public Law Outline was phased in between 1st July 2013 and 7th October 2013, and ran until 21st April 2014. A revised Public Law Outline was then introduced on 22 April 2014.
The Public Law Outline sets out streamlined case management procedures for dealing with public law children's cases. The aim is to avoid care proceedings if possible and for those cases where proceedings are necessary, identify and focus on the key issues for the child, with the aim of making the best decisions for the child within the timetable set by the Court, and avoiding the need for unnecessary evidence or hearings.
As well as the Court-set timetable, the case management tools also involve the case management documentation to be filed by the local authority and other parties, (including case summaries and a schedule of proposed findings), advocates' discussions/meetings, a Case Management Hearing and an issues resolution hearing before the final hearing.
Under the revised section 32(1)(a) of the Children Act 1989 (introduced by section 14 of the Children and Families Act 2014), care and supervision proceedings must be completed 'without delay, and, in any event, within twenty-six weeks beginning with the day on which the application was issued' unless the case is exceptional. This places an increased emphasis on pre-proceedings work and the quality of assessments.
Sir James Munby, President of the Family Division, has set out his interpretation of the revised Public Law Outline in 'The Process of Reform: the revised PLO and the Local Authority'.
1.2 Flexible Powers of the Court
Although the Public Law Outline sets out a prescribed set of stages, it also provides for flexibility at any stage of the proceedings. Steps, which the court will ordinarily take at the various stages of the proceedings, may be taken at another stage if the circumstances of the case so merit.
The flexible powers of the court include the ability for the court to cancel or repeat a particular hearing, to give directions without a hearing including setting a date for the Final Hearing (or a period within which the final hearing will take place), or to take oral evidence at the Case Management Hearing, Further Case Management Hearing or Issues Resolution Hearing. Where it is anticipated that oral evidence may be required at the Case Management Hearing ('CMH'), Further Case Management Hearing ('FCMH') or Issues Resolution Hearing ('IRH'), the court must be notified well in advance and directions sought for the conduct of the hearing.
It is crucially important that Child Litigation Unit receive instructions from the social worker or Team Manager two days in advance of the advocates meeting that proceeds each hearing to ensure that they can put forward the strongest possible case for CS and try and resolve any issues arising prior to the hearing.
Where a party has requested an urgent hearing:
- To enable the court to give immediate directions or orders to facilitate any case management issue which is to be considered at the CMH; or
- To decide whether an ICO is necessary.
The court may list such a hearing at any appropriate time before the CMH and give directions for that hearing. It is anticipated that an urgent preliminary case management hearing will only be necessary to consider issues such as jurisdiction, parentage, party status, capacity to litigate, disclosure and whether there is, or should be, a request to a Central Authority or other competent authority in a foreign state or consular authority in England and Wales in an international case. It is not intended that any urgent hearing will delay the CMH.
It is expected that full case management will take place at the CMH. It follows that the parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 - Case Management Hearing. A FCMH should only be directed where necessary and must not be regarded as a routine step in proceedings.
1.3 Pre-Proceedings General
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.
The sending to the parents of a timely 'letter before proceedings' triggers the availability of public funding for them.
There should be pre-proceedings work focusing on identifying and evaluating possible family carers.
Sir James Munby, President of the Family Division, set out in 'The Process of Reform: the revised PLO and the Local Authority', the expectations of the local authority.
He recommends that:
- Local authority lawyers be involved, advising and assisting their social work clients, at an early stage;
- A properly organised legal planning meeting is invaluable and can be the key to achieving timely outcomes to care proceedings.
In a small minority of cases, the safety and welfare of the child may be jeopardised if the start of proceedings is delayed until all of the documents in the Pre-proceedings Checklist are available. The safety and welfare of the child should never be put in jeopardy by delaying issuing proceedings (whether because of lack of documentation or otherwise), and immediate action such as an application for an Emergency Protection Order should be taken where necessary. Depending on the circumstances, the Court may require a statement and care plan for an EPO application.
Where any of documents are not available at the time of issue of the application, the court may make directions about when any missing documentation is to be filed. The expectation is that there must be a good reason why one or more of the documents are not available. Further directions relating to any missing documentation will also be made at the Case Management Hearing.
Where an application for an interim order is urgent, then the hearing of that application is NOT expected to be postponed until the Case Management Hearing. The Case Management Hearing is still to be held not before day 12 and not later than day 18. If an urgent preliminary Case Management Hearing or an urgent contested ICO hearing is held before the CMH, the court should not dispense with the CMH unless all of the parties have been sufficiently prepared and the court has been able to deal with all case management issues which would have come before it at the CMH.
1.4 Pre Proceedings with Specific Required Actions
The relevant Head of Service is contacted to gain agreement to any proposed further expert assessments under the PLO process. If a Family Assessment Support Team (FAST) assessment is to be requested, then this should be sent straight to the Team. Information should be added to monitoring systems at this point in the process, and the case booked in for a PLO meeting.
The parent(s) should then be sent:
- Pre-Proceedings Going to Court - Letter before proceedings CSF4717 (this must be authorised by the Children Services Manager). This will trigger the entitlement of the parents and those with parental responsibility, to non-means tested publicly funded legal advice;
- A list of local solicitors;
- PLO Agenda for PLO Meeting.
The Letter Before Proceedings will vary from case to case, but also has a standard format. The list of solicitors is obtainable from Legal and will vary over time).
Parents should be clearly advised of the importance of seeking legal advice.
The Team Manager should then prepare for the PLO meeting. This includes firmly establishing the areas of concern and any gaps in assessment. A draft Letter of Instruction (LOI) to an expert,should be prepared if an assessment is required, and circulated to parents' solicitor (if known) before the meeting. See CSF003 Letter of Instruction to Expert.
The PLO meeting then takes place, chaired by the relevant Children Services Manager. Ideally, the meeting will include parents, parents' legal representatives, and relevant members of the Social Work Team and their legal representative. There is a standard Agenda for PLO Meeting and PLO Record of the Meeting. The attending solicitor will write this Record and include SMART Actions as the conclusion of that record. Again, it must be authorised by the Children Services Manager before being circulated with any agreed LOIs (CSF003 Letter of Instruction to Expert). A review PLO date should be set at the meeting, although CAFCASS will not be attending these.
Viability, Friends and Family Assessments and SGO Assessments should also be clearly agreed at this meeting. Timescales must be set for these, and parents given a clear understanding of their meaning. A Permanency Planning Meeting (see Permanence Planning Procedure, Permanence Planning Meetings) must also be held within 5 working days of the PLO meeting to clarify the permanence and contingency plan for the child.
If parents do not bring a solicitor, the meeting will need to go ahead without the Local Authority solicitor being present. In this instance, it is for the Children Services Manager to decide who minutes the meeting, but the Record should still be checked by Child Litigation Unit and signed off by the Children Services Manager before it is sent to the parents. If only one parent is legally represented at the PLO meeting, it is at the discretion of the parent that has the legal representation as to whether the other parent can remain in the meeting and whether the unrepresented parent can be offered consultation from the represented parent's legal representatives.
The PLO period should last a maximum of 10 weeks except in exceptional circumstances. All cases should be tightly monitored by the Teams.
If a case does not improve or there is a critical incident, it may be necessary to issue care proceedings as an emergency or bring the PLO review meeting forward. All such decisions should be made in conjunction with advice from Child Litigation Unit, but children's safety remains paramount.
If having assessed the parenting offered during the PLO period the parenting has not improved and/or is not meeting the child(ren) needs consideration should be given to instigating care proceedings. At the end of the PLO process legal advice should be sought about the need to issue proceedings at that point. This should then happen within 10 working days unless there are exceptional circumstances.
1.5.1 Local Authority Documentation
22.214.171.124 Documents to be Filed with the Court
The following documents must be attached to the application filed with the court on Day 1:
- The social work Chronology;
- The social work statement and genogram;
- 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;
- The Care Plan;
- Index of Checklist documents;
- Any other documents relevant to threshold.
126.96.36.199 Documents to be Served on the Other Parties (but not filed with the court)
On Day 2 the local authority must serve on the other parties (but must not file with the court unless expressly directed to do so) the application form and annex documents as set out above, together with the 'evidential checklist documents'. These are evidential and other documents which already exist on the local authority's files, including:
- Previous court orders (including foreign orders) and judgments/reasons;
- Any assessment materials relevant to the key issues, including capacity to litigate, Section 7 or Section 37 reports;
- Single, joint or inter-agency reports, such as health, education, Home Office and Immigration Tribunal documents).
188.8.131.52 Documents to be Disclosed on Request by any Party
- Decision-making records, including:
- Records of key discussions with the family;
- Key local authority minutes and records for the child;
- Pre-existing Care Plans (e.g. Child in Need Plan, Looked After child plan and Child Protection Plan;
- Letters before proceedings.
In the revised Public Law Outline, both the filing and service of documents is more focused, with a concentration on what is relevant, central and key, rather than what is peripheral or historical. Local authority materials are expected to be much shorter than previously, and they should be more focused on analysis 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 two years. Documents need not be served or listed if they are older than two years before issue of the proceedings, unless reliance is placed on them in the local authority's evidence.
Documents must be focused and succinct:
The social work Chronology is a schedule containing:
- A succinct summary of the length of involvement of the local authority with the family and in particular with the child;
- A succinct summary of the significant dates and events in the child's life in chronological order, i.e. a running record up to the issue of the proceedings, providing such information under the following headings:
- Serial number;
- Witness or document reference (where applicable);
- The social work statement is to be limited to the following evidence:
- The order sought;
- Succinct summary of reasons with reference as appropriate to the Welfare Checklist.
- Family members and relationships especially the primary carers and significant adults / other children;
- Precipitating events;
- Background circumstances:
- Summary of children's services involvement. This must be cross-referenced to the Chronology;
- Previous court orders and emergency steps;
- Previous assessments.
- Summary of significant harm and / or likelihood of significant harm which the local authority will seek to establish by evidence or concession;
- Parenting capacity:
- Assessment of child's needs;
- Assessment of parental capability to meet needs;
- Analysis of why there is a gap between parental capability and the child's needs;
- Assessment of other significant adults who may be carers.
- Child impact:
- Wishes and feelings of the child(ren);
- Timetable for the child;
- Delay and timetable for the proceedings.
- Permanence and contact:
- Parallel planning;
- Realistic placement options by reference to a welfare and proportionality analysis;
- Contact framework.
- Case management:
- Evidence and assessments necessary and outstanding;
- Any information about any person's litigation capacity, mental health issues, disabilities or vulnerabilities that is relevant to their capability to participate in the proceedings;
- Case management proposals.
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'.
1.5.3 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.
184.108.40.206 Local Authority Case Summary
A document prepared by the Local Authority legal representative for each case management hearing in the prescribed form.
220.127.116.11 Case Analysis
A written (or, if there is insufficient time, an oral) outline of the case from the perspective of the child's best interests prepared by the Children's Guardian or Welsh family proceedings officer for the CMH or FCMH (where one is necessary) and IRH or as otherwise directed by the court, incorporating an analysis of the key issues that need to be resolved in the case including:
- A threshold analysis;
- A case management analysis, including an analysis of the timetable for the proceedings, an analysis of the Timetable for the Child and the evidence which any party proposes is necessary to resolve the issues;
- A parenting capability analysis;
- A child impact analysis, including an analysis of the ascertainable wishes and feelings of the child and the impact on the welfare of the child of any application to adjourn a hearing or extend the timetable for the proceedings;
- An early permanence analysis including an analysis of the proposed placements and contact framework, by reference to a welfare and proportionality analysis;
- Whether and if so what communication it is proposed there should be during the proceedings with the child by the court.
18.104.22.168 Parents' Response
A document from either or both of the parents containing:
- In no more than two pages, the parents' response to the Threshold Statement;
- The parents' placement proposals including the identity and whereabouts of all relatives and friends they propose be considered by the court;
- Information which may be relevant to a person's capacity to litigate including information about any referrals to mental health services and adult services.
1.6 Case Management Hearing
A greater emphasis is placed on the first hearing, which is renamed Case Management Hearing ('CMH') (previously Case Management Conference). 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, as identified in Stage 2 - Case Management Hearing. A Further Case Management Hearing ('FCMH') should only be directed where necessary and must not be regarded as a routine step in proceedings.
1.7 The Timetable for the Child and the Timetable for Proceedings
1.7.1 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 a 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;
- 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 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.
1.7.2 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 unless the Court considers the case exceptional.
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.
1.8 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.
If the social worker or Legal Services are aware of any factor that means that an extension to the 26 week timetable will be necessary then an application should be made to extend the timetable at the earliest opportunity.
It is important that all Court directions are complied with- non-compliance with directions will not be considered a good reason for extending the timetable. In Re W (a child) 2013 the President stated:
'For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect - and from now on family courts will demand - strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.
A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work.
Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority.'
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.
The relevant test for justifying an extension of time in care proceedings was whether it was "necessary", as stated in the Children Act 1989 s.32(5).
In respect of the new statutory framework the President in Re S (a child) 2014 made a number of points:
- The 26 week time limit is a mandatory limit which must be complied with, subject to the statutory exception set out in the new s.32(5). He reiterated his message that deadlines can and must be met;
- However, he approved of Pauffley J's judgment in Re NL (A child) that "justice must never be sacrificed upon the altar of speed";
- The President in Re B-S had dealt with the possibility of extension beyond 26 weeks in a potential adoption case if the court was not properly equipped to make decisions. In this judgment he said at paragraph 27: "That approach, which is entirely compatible with the requirements of section 32, applies not just in the particular context under consideration in Re B-S but more generally";
- Whether a case would warrant a s.32(5) extension must be determined on a case by case basis. But by way of illustration, it may be appropriate in drug abuse/alcohol abuse cases or cases involving parental mental ill-health to consider an extension beyond 26 weeks to see if a parent can make changes within the child's timescales. However, extensions should not be granted in the hope that something may turn up. But rather: "Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child's timescale?" (Para.38).
An initial extension may be granted for up to eight weeks (or less if directed). A further extension of up to eight 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 eight 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.
1.9 Use of Experts
One of the threads of the overall aim of reducing the time taken to deal with proceedings is a change in the emphasis on, and a resulting reduction in, the use of expert evidence.
Revised Rules and Practice Directions came into force on 31 January 2013 relating to expert evidence. These were put onto a statutory footing by section 13 of the Children and Families Act 2014.
The changes include:
- A change to the test for permission to put expert evidence before the court from 'reasonably required' to 'necessary to assist the court to resolve the proceedings justly'. This new 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;
- The inclusion of specific factors to which the court is to have particular regard in 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.
- No expert can now be instructed in a children case unless the court is satisfied in accordance with s 13(6) of the Children and Families Act 2014, that the expert is 'necessary' to assist the court to resolve the proceedings 'justly';
- 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.
PD36C, paragraph 7.1, substitutes a new FPR 25.6, which requires the parties to apply for permission under FPR 25.4 "as soon as possible and…no later than the case management hearing"; see also PD25C, paragraphs 3.7-3.9.
FPR 25.7(2)(a) sets out what the application notice "must" include; amongst other things the matters set out in PD25C, paragraph 3.10:
- "the discipline, qualifications and expertise of the expert (by way of CV where possible);
- the expert‟s availability to undertake the work;
- the timetable for the report;
- the responsibility for instruction;
- whether the expert evidence can properly be obtained by only one party (for example, on behalf of the child);
- why the expert evidence proposed cannot properly be given by an officer of the service, Welsh family proceedings officer or the local authority (social services undertaking a core assessment) in accordance with their respective statutory duties or any other party to the proceedings or an expert already instructed in the proceedings;
- the likely cost of the report on an hourly or other charging basis;
- the proposed apportionment (at least in the first instance) of any jointly instructed expert‟s fee; when it is to be paid; and, if applicable, whether public funding has been approved."
2. Case Management Checklist and Flowcharts
Annex Documents are the documents specified in the Annex to the Application Form which are to be attached to that form and filed with the court:
Checklist documents (already existing on the LA's files) are:
(a) Evidential documents including:
(b) Decision-making records including:
Only Checklist documents in (a) are to be served with the application form.
Checklist Documents in (b) are to be disclosed on request by any party.
Checklist documents are not to be:
2.2 Stage 1 - Issue and Allocation
|STAGE 1 ISSUE AND ALLOCATION|
|DAY 1 AND DAY 2|
On Day 1 (Day of issue):
Within a day of issue (Day 2):
2.3 Stage 2 - Case Management Hearing
|STAGE 2 - CASE MANAGEMENT HEARING|
(including any litigants in person)
|CASE MANAGEMENT HEARING|
|No later than 2 business days before CMH (or FCMH if it is necessary)||
CMH: Not before day 12 and not later than day 18A FCMH is to be held only if necessary, it is to be listed as soon as possible and in any event no later than day 25
Court gives detailed case management directions, including:
2.4 Stage 3 - Issues Resolution Hearing
|STAGE 3 - ISSUES RESOLUTION HEARING|
(including any litigants in person)
|ISSUES RESOLUTION HEARING (IRH)|
|No later than 7 business days before the IRH||As directed by the court, in accordance with the timetable for the proceedings|