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 GUIDANCE
This chapter was amended in October 2019 to reflect changes from ‘Practice Direction 27a - Family Proceedings: Court Bundles (Universal Practice to be Applied in the High Court and Family Court)’, in relation to the required maximum length of certain court documents, (unless otherwise specifically directed by the court). In addition, a new subsection of Section 4.1, Local Authority Documentation - ‘Final Care Plan’ provides further detail on the importance of recording information on the Care Plan which will help the child, parent or the child’s carer understand why decisions have been or are being made.
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. This places an increased emphasis on pre-proceedings work and the quality of Assessments.
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 Placement for Adoption Procedure).
Work done in the period pre-proceedings is vital for two reasons:
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.
Sir James Munby, former 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 in relation to pre-proceedings work. He recommended that:
Before a decision can be made to initiate Care or Supervision Proceedings, a Legal Planning Meeting should be held.
At the Legal Planning Meeting, a decision will be made in principle about whether the Threshold Criteria have been met and whether:
Information presented to a Child Protection Conference should inform the decision-making process but it is for the local authority to consider whether it should initiate proceedings.
If the decision is taken at the Legal Planning Meeting to undertake a formal pre-proceedings process, the local authority will send to the parents / those with Parental Responsibility either:
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.
The Letter Before Proceedings (see letter template at Appendix 1: Letter Before Proceedings) is the formal written notification that proceedings are likely. It should set out:
The letter should invite the parents / others with Parental Responsibility to a pre-proceedings meeting (see Section 2.4 Pre-Proceedings Meeting below).
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.
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.
At this meeting, the local authority should:
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.
Before a decision can be made to initiate Care or Supervision Proceedings, the approval of the Designated Manager (Care Proceedings) 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 2: Letter of Issue.
The social worker and local authority solicitor will then prepare the documents that are required to be produced for Court. The local authority solicitor will advise the court of the name of the Independent Review Officer and their contact details.
In some cases, the level of concern about a child's welfare may require rapid and sometimes immediate recourse to the courts. 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.
Considering Care and Supervision Proceedings at a pre-birth stage and when a child is newly born remains challenging for a number of reasons.
A High Court judgment (Nottingham City Council v LW & Ors  EWHC 11(Fam) (19 February 2016)) has 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):
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'.
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 following documents must be attached to the application filed with the court on Day 1:
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:
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 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.
Documents must be focused and succinct.
The social work Chronology is a schedule containing:
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' 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.
A document prepared by the local authority legal representative for each case management hearing in the prescribed form. Unless specifically directed by the court, it should be no more than 6 sheets and sides of A4 text.
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.
It should set out:
The Care Plan will need to be signed by the practitioner completing it, together with the Nominated Officer who has responsibility for agreeing the resources to be made available.
The Care Plan should be no more than 10 sheets of A4 paper and sides, unless directed by the court.
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 document from either or both of the parents containing:
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.
Where a party has requested an urgent hearing:
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.
A great emphasis is placed on the first hearing, the 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, 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.
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:
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 Review 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.
The court will draw up a Timetable for the Proceedings with a view to disposing of the application:
The court will have regard to:
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.
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:
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:
Decisions about commissioning such evidence should be made early in the proceedings, usually at the Case Management Hearing.
For more information please see Practice Direction 25B - The Duties of an Expert, the Expert's Report and Arrangements for an Expert to Attend Court.
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.
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.
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.
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:
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:
|STAGE 1 ISSUE AND ALLOCATION|
|DAY 1 AND DAY 2|
On Day 1 (Day of issue):
Within a day of issue (Day 2):
|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 18.A 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:
|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.|
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'):
Only valid for 48hrs