Public Law Children Act – Care Proceedings

This is when a Local Authority, via its Social Services Department, makes an application to the Court to obtain legal powers to intervene in families, and to make decisions about the way in which children are cared for by their parents or other family members.

If the local authority has issued care proceedings in relation to your children you are entitled to free legal advice. You may also be entitled to be represented under the legal help or legal aid scheme in respect of other matters relating to your children.

For more information please contact Liz Fitzpatrick on 01895 207857 or email childcare@ibblaw.co.uk.

Why has the local authority issued care proceedings?

There are a number of reasons why the local authority may issue court proceedings; it could be one or a number of issues of concern.

There are steps the local authority may take prior to proceedings starting in which you will be involved, called pre-proceedings.

Range of issues of concern

Neglect

This is when the day-to-day needs of your child are not being met or are at risk of not being met due to your behaviour. This can include:

  • Poor school/nursery attendance
  • Poor living conditions, for example a dirty, untidy or chaotic household
  • Lack of food or lack of basic items required by a child, inadequate nutrition, no structured mealtimes
  • Poor hygiene, unwashed clothes, infrequent bathing, untreated head lice
  • Leaving your child home alone
  • Lack of cooperation with services which provide assistance (including the local authority), failure to keep appointments for or about your child.

Emotional harm

This is when the emotional needs of your child are not being met or are at risk of not being met due to your behaviour. This can include:

  • Leaving your children with a number of different carers
  • Withdrawing love, rejecting your child, being inconsistent or unavailable when your child wants to talk or spend time with you
  • Not believing your child/taking action when your child tells you something is wrong
  • Thinking about yourself and your needs before those of your child
  • Exposing your child to inappropriate people, for example, sex offenders or drug dealers
  • Ridicule and threats, making the child feel worthless
  • When your child witnesses or is nearby during an incident of domestic violence.

Physical harm

This is when your child has suffered an injury to his or her body or is at risk of suffering such an injury.

  • This includes punching, biting, hitting, shaking, kicking, burning, and scratching
  • It can be a slap as a form of punishment
  • A delay in seeking treatment for injuries or illness and misuse of medication – that is, not giving medicines properly – can be physical harm.

Non-accidental injury

This is when your child is injured as a result of mistreatment or deliberate action of an adult care giver. This is at the most serious end of the physical harm category.

  • This includes all the issues listed under physical harm and the more serious forms of physical harm including, extensive or multiple bruises, lacerations, burns/scalds, fractures, head injuries and poisoning.

Sexual abuse

This is when a child is, or is at risk of, being used sexually by an adult or young person.

  • This includes any sexual act with a child including touching genitals or breasts and some sorts of kissing
  • Exposing a child to sexualised behaviour between adults or other young people
  • Making a child look at pornographic magazines or films.

Parental issues that make the above more likely

  • Drug/alcohol misuse
  • Mental health issues
  • Low cognitive functioning

All of the above can make a parent less focused on their child and therefore more likely to be neglectful or expose them to one of the other forms of harm. These are not necessarily bars to providing an acceptable level of parenting, but parents may need help in addressing the reasons why their parenting is not of a good enough standard and making changes to their parenting.

Pre proceedings

  • Your child may already be in the care of the Local Authority following an agreement by you known as a ‘Section 20’ agreement. If this is the case and you want your children returned to your care, you can withdraw your consent. If, however, the Local Authority does not think your children should be returned to your care then they may apply to the Court for an Order.
  • The Local Authority may convene a Child Protection Case Conference to which various agencies will be invited, for example, Midwifery, Health Visitors, school representative, GP, Police. The social work team will also be in attendance as may additional family members. This can result in your child being made the subject of a child protection plan OR a child in need plan
  • The Local Authority may send you a letter (known as a ‘PLO’ (Public Law Outline) letter), giving you a last opportunity to cooperate prior to issuing proceedings
  • In the event you receive an ‘Immediate Issue Letter’ your matter will be heard by the Court. In the event you have not already taken legal advice you should do so immediately

If the local authority has issued care proceedings in relation to your children you are entitled to free legal advice. You may also be entitled to be represented under the legal help or legal aid scheme in respect of other matters relating to your children.

For more information please contact Liz Fitzpatrick on 01895 207857 or email childcare@ibblaw.co.uk.

Questions asked by children in Care Proceedings

1. Why can’t I live with my mum or dad at the moment?

This is because your social worker is worried that you may not be safe at home. Ask your social worker to explain why she is worried about you, and your own situation.

2. Can I see my mum or dad if I am living in care?

You can meet your mum and dad if this can be arranged safely; this is called ‘contact’. Most children will see their parents whilst they are in care. You can see other people too who are special to you, such as a brother or sister or grandparent.

3. Will I be able to return home?

This will be decided by the court. If you can return home and be safe, the court will try to make this happen. If you can not return home safely the court will look at whether you can live with another family member or friend, for example a grandparent or aunt or uncle.

4. Who makes the decision about where I will live?

In court, a judge will look at the documents given to them by your social worker and parents; this is called evidence. The judge will also listen to your Children’s Guardian, who will tell the judge what you think should happen, and give the judge recommendations. When the judge has thought about all the information they will decide where you will live in the future.

The judge will make the decision depending on what they thinks is in your best interests. This is more important than what is best for anyone else.

5. Who is a Children’s Guardian?

This person is an adult who is appointed by the court to be the voice of the child or young person. They do not work for social services. They are independent and will tell the court what you think. They will also tell the court what they think is in your best interests for the future.

6. Who is the Children’s Solicitor?

This is a lawyer who represents you and the Children’s Guardian in court. If you have good enough understanding of the court proceedings and you do not agree with your Guardian, the Children’s Solicitor may take instructions from you directly.

If your family is undergoing a difficult child custody case, or you need representation for Care and Adoption proceedings, we can help. Contact us in confidence on 01895 207857, or email us at childcare@ibblaw.co.uk

Resources:

You might it useful to look for further information on these websites:

Where will my child live during the proceedings?

This depends on what orders have been made in relation to your child. Your child may live with:

  • You at home in the community with help and assistance from agencies and social workers;
  • You in a residential unit;
  • You and your child in a foster placement;
  • Other family members;
  • A foster family;
  • A residential unit for children.

If you are not living with your child the local authority has a duty to promote a reasonable amount of contact between you and your child. Levels of contact vary greatly. This will depend on the issues in the case, the age of your child and a number of other factors. You should talk to your solicitor about the particular circumstances of your case.

What does the court consider when making a decision relating to children?

When considering any application in respect of a child under the Children Act, the child’s welfare is the court’s paramount consideration. This means that the wishes and feelings of parents are secondary.

The court must also consider the following when deciding what order to make or whether to make any order at all:

  • The wishes and feelings of the child in the light of his/her or age and understanding;
  • The child’s physical, emotional and educational needs;
  • The likely effect on the child of any change in their circumstances;
  • The child’s age, sex, background, any characteristics the child may have as relevant;
  • Any harm that the child has suffered or is at risk of suffering;
  • How capable each of the children’s parents, and any other person whom the court considers relevant, is of meeting their needs;
  • The range of powers available to the court in the proceedings.

These factors are known as the ‘Welfare Check List’.

Who will be involved in the proceedings?

  1. You and the child’s other parent
  2. The local authority through the social services department
  3. Your child through his/her guardian
  4. Any joined party

You and the child’s other parent

The local authority through the social services department

  • The Local Authority brings the application before the court. There will be a legal representative for the local authority who will talk to the Judge or Magistrates;
  • The social worker and the team manager will also be present in court. The social worker may give evidence.

Your child through his/her guardian

  • Guardian will be appointed for your child. The Guardian will look at the issues from the point of view of your child and will make decisions based on what is in his/her best interest. The Guardian is independent of both you and the Local Authority. The Guardian is the voice of your child within the proceedings;
  • Your child will also be appointed a solicitor who will work with the Guardian;
  • In some cases your child may provide instructions directly to his/her solicitor, that is, NOT through the Guardian. This will only happen if your child is sufficiently mature to manage this and the wishes and feeling of the child are different to the view held by the Guardian. This decision will be made by the solicitor.

Any joined party

  • Any person who considers that they have a case to present to the court, which is not already being put forward by another party, may ask to be ‘joined’ as a party and make an application to the Court. They will not automatically get free legal advice and their application may be rejected by the court;
  • Cases where other people may want to become involved in proceedings include grandparents, or other relatives, who are caring for a child or who wish to be assessed to care for a child when the local authority either wish to remove that child or refuse to assess;
  • The court can ‘join’ people it feels may have an important role in establishing what has happened to a child. Where, for example, a child has suffered an injury or been sexually abused and there is a suggestion that someone other than a parent may have been responsible, for example, a childminder, new partner of either parent or other relative, then the court may make that person a party;
  • A joined party will have access to some or all of the papers and may be entitled to free legal advice.

Do Grandparents have rights?

Grandparents have no automatic rights within public law proceedings and they are not automatic parties to care proceedings.

Grandparents may put themselves forward to:

  • Be temporary carers for their grandchildren
  • Be permanent carers by way of Residence Order; Special Guardianship Order or Adoption;
  • Have contact with their grandchildren

Grandparents need to come forward at the earliest opportunity and make themselves known to the child’s social work team. This could be before court proceedings have started.

The local authority (social services) is under a duty to carry out an initial (viability) assessment if extended family members are putting themselves forward as carers. In the event this is positive this will progress to a full assessment.

It is important to consult a solicitor as to the range of Orders under which a child can be placed. A solicitor is best placed to advise you as to the most appropriate form of Order for you and your grandchild. The wrong choice of application could result in a negative assessment.

In the event that the initial assessment is negative, you will again need to contact a solicitor to challenge this.

The court can direct an assessment of you even if the Local Authority refuses.

It is important to take legal advice prior to making this application. A solicitor can represent you in court and prepare relevant legal arguments as necessary.

In public law proceedings if other extended family members (such as aunts or uncles) feel that they are able to make a positive contribution to the lives of children within their family, they may also benefit from early legal advice.

Please contact IBB to discuss your childcare issue. To arrange a meeting, email us at childcare@ibblaw.co.uk or call us on 01895 207881.

What can the court do?

There are a number of options open to the court when a local authority presents a case concerning children. These are the most common orders a court will make:

Emergency protection orders

  • The court must be satisfied there is reasonable cause to believe that the child is likely to suffer significant harm, that is, there is good reason to think the child will suffer serious harm;
  • It is important to note that no harm need actually have been caused to the child before an order can be made;
  • If the order is granted the local authority will be able to remove the child and will acquire parental responsibility, enabling them to make decisions about the child’s welfare;
  • The order will be made for 8 days. This can be extended only once for up to a further 7 days.

Interim care order

The court must be satisfied that there are reasonable grounds for believing the ‘threshold criteria’ are met. The threshold criteria are essentially the reasons why the local authority is making an application to the Court.

  • The legal test for the threshold criteria is as follows:
    • that the child concerned is suffering, or is likely to suffer, significant harm; and
    • that the harm, or likelihood of harm, is because of:
  • the care given to the child (or likely to be given to him if the order were not made) not being what it would be reasonable to expect a parent to give him; or
  • the child’s being beyond parental control
  • ‘Significant harm’ could be one or a mixture of the concerns listed in the section Why has the local authority issued care proceedings, namely, neglect, emotional and/or physical harm or sexual abuse. The harm does not have to have occurred already; it could just be a likely risk of it happening in the future;
  • The reason the child has suffered the harm (or is at risk of suffering the harm) is because of your behaviour which falls short of the behaviour or decisions that would be taken by a ‘reasonable’ parent;
  • If the court makes this order the local authority takes over parental responsibility and can place your child outside of your family;
  • The order can be made for up to eight weeks initially but once interim threshold is established an Interim Care Order is likely to be renewed until the court makes a final decision;
  • The local authority is under a duty to promote reasonable contact between you and your child. If contact is not taking place, please speak to your solicitor.

Interim supervision order

  • The grounds for making an interim supervision order are the same as those for making an interim care order
  • If an order is made the Local Authority is under a duty to provide advice, assist and befriend the child. The local authority does not acquire parental responsibility and the decision making power remains with you
  • Information and access are required to be given to the supervisor, who is often a social worker.
  • An order can be made for up to 8 weeks initially but can be renewed for the life of the proceedings.

No order

  • If the court considers that threshold criteria have been met, however no interim orders are necessary to protect the child’s welfare, then the court may make no order;
  • If the local authority cannot demonstrate to the court that the interim threshold is met then the court will make no order;
  • You may be invited to enter into a written agreement with the local authority, listing what is expected of you and the services that the local authority will provide. If you fail to meet these expectations, the local authority will probably return the matter to court and ask for an interim order to protect your child.

Final orders

  • At the end of the proceedings, when all the evidence has been gathered, the court will make a final decision. This is known as a Final Hearing. The Court could decide to make a Care Order or Supervision Order or a number of other orders that  we have not explained in detail here. Talk to your solicitor for more information;
  • If the court makes a Care Order, the Local Authority will probably look to place your child outside of your family on a permanent basis either through fostering, special guardianship or adoption. A Care Order lasts until a child is 18 years old;
  • Any contact you have had with your child during the proceedings is likely to be significantly reduced, possibly to no contact or letterbox contact only;
  • It is possible to apply to discharge a Care Order if you can demonstrate a significant change in circumstances. You will need to make an application to the court. Talk to a solicitor for more information;
  • A Supervision Order runs initially for a year but can be renewed for up to three years.

How long will the process take?

The Court guidelines in relation to public law proceedings are that the case should conclude within 26 weeks of the local authority making the application.

Occasionally, cases take much longer than this and on occasions, conclude more quickly. This depends on the complexity of the case, number of people involved, available court time and level of agreement between the parties. Your solicitor is best placed to give you detailed advice in relation to this.

Most cases will be listed at court as follows:

  • First appointment or interim care order application hearing – the court will determine whether there is sufficient evidence for an interim care order
  • Case management hearing – to timetable and establish what further information is required to progress the case
  • Issue Resolution Hearing- to consider that all outstanding matters are dealt with and that the case is ready for final hearing
  • Final hearing – where a final decision is made and the matter is concluded

There may be additional hearings listed if issues arise that require determination by the court.

Could I receive legal aid for my childcare matter?

In Public Law ‘Care Proceedings’, when a Local Authority issues an application for a Care Order or a Supervision Order; all parties who are children, birth parents and those who hold Parental Responsibility for the relevant child are automatically entitled to Legal Aid, which means the Government will pay for your legal representation.

Other family members may be entitled to legal aid based on a means test and a merits test, either to be joined as a party in Care Proceedings or to make a free standing application such as a Residence Order. You may be required to make a monthly contribution towards your legal aid.

Please contact IBB today for more information. Please email us at childcare@ibblaw.co.uk or call us on  01895 207857.


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