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Contents

1. Introduction
2. Statutory Guidance
3. Public Law Outline (PLO)

1. Introduction

Following the ‘Review of the Child Care Proceedings System in England and Wales’ (the “Care Review”), two key pieces of guidance became effective from 1 April 2008:

• Revised statutory guidance for local authorities (issued under section 7 of the Local Authority Social Services Act 1970) in relation to the issue of applications for Care Proceedings  and the work that should be undertaken with children and families before such applications are made; 
• The Public Law Outline (PLO), which is a guide to case management in public law proceedings for courts and parties to such proceedings.  This replaced the Protocol for Judicial Case Management in Public Law Children Act Cases (which was effective from November 2003).

The two documents are complementary and set out changes designed to reduce the impact of delay on children involved in Care Proceedings.

The Care Review made a number of recommendations to improve the system for children subject to Care Proceedings and to ensure that all resources in the system are used in the most timely and effective way. The Review encouraged early intervention to find resolutions before cases reach court, and identified ways to improve the quality of local authority applications and improve case management procedures for those that do reach court.

The aim is to complete 56% of cases in the Family Proceedings Courts and 48% of cases in Care Centres within 40 weeks.

2. Statutory Guidance

What are the main changes in the revised guidance?

Local authorities are now expected to submit better quality applications to court. The revised guidance places increased emphasis on pre-proceedings preparation of cases by local authorities to ensure that all the necessary steps have been completed prior to issuing proceedings to avoid unnecessary delay during the start of the court process.

This will ensure that all kinship care options have been fully explored, Core Assessments are carried out and that Care Plans have been prepared and shared with families. 

What is the entitlement of parents and those with Parental Responsibility to non-means tested publicly funded legal advice?

This can be accessed once the local authority has notified parents and those with Parental Responsibility of its intention to initiate proceedings.

This additional legal help will cover liaison and negotiations with local authorities, with the aim of avoiding proceedings or if this is not possible, identifying the key issues in dispute at an early stage.

The Pre-Proceedings checklist

Click here to view Pre-Proceedings Checklist Flowchart

Click here to view Stage 1- Issue and the First Appointment Flowchart

Click here to view Stage 2- Case Management Conference Flowchart

Click here to view Stage 3- Issues Resolution Hearing Flowchart

Click here to view Stage 4- Hearing Flowchart

Flowchart: Pre-Proceedings – Public Law Outline

Click here to view Pre-Proceedings- Public Law Outline Flowchart

The aim of the Pre-Proceedings Checklist is to ensure that all pertinent documents which are on the local authority file are lodged with the application from the outset.

Only those documents that are directly relevant to the local authority case, e.g. the outcome of key meetings with the family, should be filed with the application.

The court will closely and routinely consider what actions have been taken by local authorities before a care application has been made.

If certain pre-proceedings steps have not been taken, the judge and/or legal adviser reviewing the application will consider issuing standard directions to ensure the case can progress.

If a child’s welfare is at risk, the local authority must make an immediate court application. The PLO recognises that urgent action in these cases will mean that it will not be possible to file all required documents from the outset.

How will the voice of the child be represented during the pre-proceedings stages?

There is no provision for the child to be represented at the meeting between the local authority, the parents and their legal representatives. The purpose of the meeting is to clarify the issues for the parents and to help them to understand what needs to happen in order to avoid court proceedings.

It is of course important, and part of the local authority’s role, to consider the voice of the child throughout a properly undertaken Core Assessment.

Where do Family Group Conferences fit into the process?

The pre-proceedings flowchart sets out that Family Group Conferences may be used at any point following the Initial Assessment.

Individual discretion will need to be exercised by social workers about whether a FGC is appropriate and when it should fit into the process.

To what extent will the courts expect to see specialist and independent assessments of family members during the pre-proceedings stages?

The purpose of the assessment process before proceedings commence is to help the local authority to determine whether it is appropriate to make an application to court and to help them come to a decision about what the needs of the child are. As part of the Core Assessment process, local authorities will need to consider to what extent any specialist or independent assessments may or may not be appropriate.

Local authorities will need to work closely with key partners – e.g. Children’s Trusts and health partners – to identify how early and proportionate assessments should be incorporated into Core Assessment activity.

Of course, the parties may wish for additional assessments to be completed during court proceedings. The parties should discuss whether an expert is required at the advocates’ meeting before the Case Management Conference. 

The question of whether additional expert assessments should be commissioned is then a matter to be determined by the court at the CMC. In the first instance, though, the court will consider if these assessments should be undertaken by the social worker or Children’s Guardian.

When should the notification be issued to parents?

The decision about whether to issue a letter before proceedings, setting out local authority’s concerns about a child should be taken at a Legal Planning Meeting or equivalent.

In some circumstances, the safeguarding concerns will be such that a decision will be taken to make an application to court immediately. In these circumstances it will not be possible to send a letter to the parents. However in other circumstances, whilst care or supervision proceedings may be deemed appropriate, the safeguarding concerns may nonetheless allow time to be factored in for further work with the family, and a letter before proceedings should be issued at this point. 

Can the letter before proceedings be issued to parents/those with PR before the birth of an unborn child?

Yes

What processes should be adopted by local authorities after a letter before proceedings is issued?

Local authorities should aim to meet with the parents and their legal representatives as soon as possible after a letter before proceedings is issued.

Any plan that is agreed at this meeting should also be communicated to the parents and their legal representatives after this meeting. The plan should be reviewed regularly and the safety of the child should be a paramount consideration in this.

If at any point the risk to the child is such that court proceedings should be taken, then an application should be made immediately.

Can you give any advice on gaining parental consent to approach relatives at an early stage and maintaining working relationship with parents?

The most important thing is to work closely with parents at each stage so they are fully engaged with the process. This is likely to be much more productive than covert approaches to members of the wider family which would be inappropriate.

It is accepted that in many cases some relatives will not put themselves forward at an early stage to avoid conflict with the parents. The focus on working with the parents before proceedings is an attempt to overcome some of these issues. In many cases, though, it is accepted that it may only be possible to pursue ‘family and friends’ options once proceedings have started.

What level of detail will be required in assessing family members?

This will depend on the role that is envisaged for the family member. A high level of detail is likely to be needed if, for example, a family member is to be assessed with a view to being approved as a local authority foster carer.

Do kinship carers’ assessments always have to be fully completed before proceedings are issued?

This depends on the circumstances of each case. In some instances this will be possible; in others the need to safeguard the child may preclude this step from being completed. 

How wide is the search for relatives?

This will need to be considered on a case by case basis.

How do we ensure all potential carers come forward? Will there be a deadline after which family members will not be considered?

It is necessary to exercise professional judgement about the point at which this should be pursued as opposed to setting a final deadline, particularly without the authority of the court.

If DNA testing is required to confirm the father’s identity, will the local authority need to complete this work prior to the proceedings (and fund it)? And what happens if the father only comes forward at or after the commencement of proceedings?

In cases such as this, there will be implications for the whole of the paternal family. Although the suitability of a putative father as a permanence option for the child may need to take account of DNA evidence of paternity, there are likely to be a number of other important factors to take into account. The consideration of putative fathers as permanent carers may therefore take place at any time before or after (or, occasionally instead of) care proceedings.

There may be situations where we do not want to alert the parents to the possibility of issuing proceedings, for example if there is a risk of them disappearing. Do local authorities always have to inform parents of their concerns?

Local authorities will need to exercise their discretion and judgment about how and when they should engage with children and their families. In these circumstances, in order to safeguard the welfare of the child it may be appropriate to progress to court proceedings. Consideration should also be given as to whether there are grounds for an Emergency Protection Order or the exercise of Police Protection powers.

3. Public Law Outline (PLO)

The Public Law Outline (PLO), which is supported by a detailed Practice Direction, sets out streamlined case management procedures for dealing with public law children’s cases.  The aim is to 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.

One of the main principles is judicial continuity – i.e. each case will be allocated to not more than two case management judges who will be responsible for every stage in the case management process through to the final hearing.  The Court will set an appropriate timetable for each case to take account of the significant steps in the child’s life which will occur during the proceedings e.g. the child’s Looked After Review, any change of placement and/or school for the child, any specialist assessment of the child or any review of the child’s Care Plan or Statement of Special Educational Needs (SEN).

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 Conference (CMC) and an issues resolution hearing before the final hearing/

The Court will be responsible for active and consistent case management of each case.

The following are some of the frequently asked questions in relation to the PLO:

I need leave from the court to disclose previous court orders/judgements. How can I be expected to file these with the application?

In these circumstances local authorities are asked to alert the court to the fact that there have been previous orders and to summarise what happened in these cases and why they are relevant.

How do assessments under Section 38(6) of the Children Act 1989 fit into the timetable?

These are assessments directed by the court to take place during the course of the court proceedings, with the outcome being reported to the Court and informing the court’s final decision. 

These can only take place after proceedings have been initiated, and may arise at any point in the process.

What will happen to cases that are already following the Judicial Protocol once the PLO is introduced?

The PLO will not apply to applications issued before 1 April 2008. However, the court may direct in any individual case that the PLO will apply in whole or in part.

How will the timetabling take into account the need for Adoption Panel consideration of care plans?

If Adoption Panel consideration of care plans is a factor in individual cases then this should be flagged as a consideration for the court to consider in setting the timetable for the child.

What will happen to the timetable for the child if there are other competing considerations, such as the availability of expert witnesses?

The court is responsible for reviewing the timetable at all stages of the case and will need to consider if the timetable for the child needs to be altered. There may well be competing considerations faced by the court, which will affect the timetable, and this will need to be handled by the courts on a case by case basis.

The new process seeks to ensure that assessments take place before care proceedings start. What will the court’s approach be if additional assessments are also requested before proceedings?

It is not intended that all of the work done in proceedings is to be shifted pre-proceedings. It is important to ensure that Core Assessments are undertaken wherever possible before proceedings commence and, as part of them, additional specialist assessments may be commissioned in order to help inform the local authority’s decision to take proceedings.

Where the contents of a Core Assessment are disputed and the lack of agreement requires protective measures to be taken, the question of another assessment would be one to be addressed in care proceedings.

Under the Experts Practice Direction, if the question of whether an expert should be instructed is raised, the court should first consider if this work can be completed by a social worker or Children’s Guardian.

How will finding of fact hearings fit into the new process?

There will be no changes to finding of fact hearings. Most of the cases where finding of fact hearings are required will be timetabled around the Case Management Conference (CMC) so that a finding of fact hearing is directed and an adjourned CMC can consider the outcome for further directions.

Does the new system have the facility to identify parent’s who lack litigation capacity at an early stage to enable a guardian ad litem to be appointed?

The pre-proceedings guidance should remind local authority staff of the need to identify ‘protected parties’ at an early stage. The use of legal advocates in the pre-proceedings process should also enhance earlier identification.

This question will also be raised at each stage of proceedings: on issue of the application; at the First Appointment and again at the Case Management Conference (CMC).

What will happen if there is a significant change of circumstances very late in the case, for example at the Issues Resolution Hearing?

Parties should immediately advise the court of any late changes of circumstance. They may be able to agree directions and a next hearing date and advise the court of their proposals. In any event, the case management judge will consider their proposals and determine the best way forward. This could result in approving the agreed directions or could include arranging an urgent hearing to review the situation and making directions for any necessary information to be available for that hearing.

If more than one child is involved in a case and there are conflicting interests, how will the timetable for the child be determined?

The timetable for the child may be different for different children and consideration will need to be given to all of the circumstances in a case to determine how and when the case should proceed. If one child’s case will be ready well in advance of another’s it may be appropriate to deal with it then. The court will hear all parties’ positions individually and will not consider the same issues in dispute on more than one occasion.

When will contested Interim Care Orders be heard? Will this coincide with the First Appointment?

In most cases, arrangements for contested interim hearings will be considered at the First Appointment. This will enable the parties with the court to identify the issues and evidence required for the contested hearing.

What is the process to ensure that a solicitor for the child is appointed in time for the First Appointment?

It is imperative that a solicitor is appointed to the child in good time for the first hearing. On day one, the court should appoint a Children’s Guardian. CAFCASS will allocate the case and a Children’s Guardian should appoint a solicitor on the child’s behalf by day three. In cases where CAFCASS are not in a position to do this, the court should appoint a solicitor for the child.

What will be the process for agreeing and setting the timetable for the child, and will there be any ‘final’ time limit, such as 40 weeks? Once the timetable/limit is set, will it be the expectation that all processes will fit within that child’s timetable?

The timetable will be set by the Judge or Case Progression Officer, after consideration of the information from the parties. Cases should still not exceed 40 weeks without good welfare reasons.

How does Article 6 of the Human Rights Convention sit with reducing court time and saving resources?

The changes do not seek to reduce court time but to make better use of court time by front loading preparation and analysis.

The ECHR Article 6 jurisprudence will not be contravened by any of the proposals.

What is the procedure when applications for an Emergency Protection Order proceed to full care proceedings?

Emergency Protection Orders are outside the scope of the PLO. However, the Practice Direction does state explicitly that consideration should be given to applying the PLO to all public law proceedings and it will therefore be a decision to be taken by the court about how and when it is appropriate for the PLO to apply when an application starts by way of EPO.

Where can I access the Experts Practice Direction?

The final version of the Practice Direction is available on the HMCS website.

End