Public Law Outline, Public and Private Law Proceedings

1. Introduction

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. 

There is recognition of the possibility that potential Special Guardianship Order applicants can be identified late in care proceedings. This was addressed in Re-S (A Child) {2014} EWCC B44 (Fam). Interim Guidance has now been issued by the Family Justice Guidance.

Interim Guidance on Special Guardianship

The Family Justice Council: Interim Guidance on Special Guardianship has been issued with the primary purpose of addressing cases where an extension to the 26 week time limit is required to more fully assess potential special guardians.

Where a full assessment is undertaken, it is to be expected that this will usually require a 3-month time scale. This promotes full checks being completed; an interactive approach with the applicant(s) to ensure their full understanding of the child's needs and the tasks and challenges in meeting those needs until their 18th birthday.

Identified alternative potential carers should be identified at an early stage – including through pre-proceedings where possible and by convening a Family Group Conference.

The social work Statement must include potential carers via a genogram.

Where proceedings have commenced, all parties including the Guardian should file and serve a position statement in advance of the First Case management Hearing (CMH) to include the details of proposed carers for assessment by the local authority.

NOTE identification of carers should focus on the child's interests, not on parents' approval / disapproval.

Where the viability assessment is negative, the local authority must notify the subject of the assessment together with the procedure for any application to the court to seek leave pursuant to the Children Act 1989, Section 10(9) or to be joined as a party. Any challenge must be pursued promptly - the matter to be referred to the allocated judge, or other appropriate judge for urgent direction.

Special Guardianship Applicants Identified Late in Proceedings

This was addressed in Re-S (A Child) {2014} EWCC B44(Fam) (para 33(ii) (c)) in that a proposal for assessment must be realistic.

An extension beyond 26 weeks should be permitted 'to enable the court to resolve the proceedings justly'.

The Interim Guidance also identifies that:

  • This would also include assessments of carers living in another country, via Children and Families Across Borders (CFAB);
  • Where more time is needed to consider both the quality of the relationships between the child and proposed carers and the stability of the (potential) placement. This will almost certainly lead to an extension of the timetable but this should be proportionate to the welfare criteria;
  • An approved court extension may require consideration of the legal framework where it may impact upon the child being placed with potential carers, e.g. using Section 8 of the 1989 Children Act where a placement cannot be made under Regulation 24 (Care Planning, Placement and Case Review (England) Regulations 2010). However, this should be carefully considered.

2. Pre-Proceedings

Before a decision can be made to initiate Care or Supervision Proceedings, a Legal Planning Meeting should be held - see Legal Planning Meetings Procedure.

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. They and the local authority may be represented by a solicitor at this meeting- Public Law Outline (2014).

The meeting will:

  • Agree a revised plan for the child, which should be subsequently confirmed in writing to the parents by the local authority, setting out what the parents and the local authority must do to safeguard the child. The plan will indicate the steps the local authority will take to support the parents and the timescales within which progress must be made for proceedings to be avoided. This may include further assessments or testing of parents / child to assist in understanding the level of risk;
  • Outline the steps that the local authority will take at the end of this period, depending on whether progress has been demonstrated; and
  • Review arrangements for identifying potential family carers, and/or for assessments with the parents, particularly where these require letters of instruction to assessment services.

Setting clear expectations and timescales for improvement will reduce the potential for delay. The child's plan should be reviewed within 12 weeks of the meeting to ensure that sufficient progress is being made.

3. Public Law Proceedings

Before a decision can be made to initiate Care or Supervision Proceedings, the approval of the Designated Manager (Care Proceedings) must be obtained.

In order to ensure that the local authority standards are consistently met the following will apply:

  • Once the decision has been taken to initiate care 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 3: Letter of Intent to Issue Court Proceedings;
  • In cases where immediate short-term protection is required an emergency protection order (EPO) will be applied for;
  • In cases yet to be issued, evidence must be sent to legal services on the date agreed at the LPM. The evidence must be approved by both the team manager the allocated lawyer in Legal Service before being sent to the Head of Service for final approval;
  • In all cases, social work teams will be expected to forward to Legal Services all evidence required to issue proceedings, The index and the checklist documents are evidential documents including any assessment materials relevant to the key issues including s.7 & s.37 reports and decision-making records;
  • Legal Services will provide feedback on the evidence, to include proposed amendments, to the SW, TM within 3 working days of receipt. Once the SW team have reviewed the evidence and made any agreed changes, Legal Services will issue care proceedings within 2 working days of receipt of the returned documents;
  • Legal Services will provide a post court memo within 3 working days of a court hearing, setting out the key directions made and dates for filing further evidence. It is the responsibility of the social work teams to diarise hearings and filing dates;
  • In circumstances where court directions are not complied with or where there are serious concerns regarding the quality of social work evidence, the allocated lawyer will alert the respective Head of Service in the first instance. If the matter is not satisfactorily resolved at this level there will be further escalation of the matter to the Divisional Director of the Children and Families Service;
  • Final legal planning meetings, to agree Local Authority final evidence and care plan, should occur in advance of the Issues Resolution Hearing (IRH) but after the filing of expert witness statements to allow sufficient time for the preparation of evidence prior to the final hearing.

4. Private Law Proceedings

  • Court directed reports within private law proceedings, will be dealt with directly by social work teams. It is important that social workers are mindful of the specific points ordered by the court to be considered. Section 7 reports will be quality assured by safeguarding team managers and Deputy Head of Service. All Section 7 reports must be submitted to Deputy Head of Service two days prior to the filing date. Approved Section 7 report will be filed directly by the social work team with the court;
  • At the point of request receipt SW and TM to agree completion timescales considering request for LPM as appropriate. Section 37 reports will be quality assured by assessment team manager and Head / Deputy Head of Service. All Section 37 reports must be submitted to Head of Service two days prior to the filing date;
  • If the assistance of legal services is deemed necessary due to the complexity of the case, the social worker should request a legal planning meeting at the earliest opportunity.

5. Good Local Authority Practice During Proceedings

Throughout the proceedings, the local authority must comply with court directions made regarding the timet ab ling 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 time frames 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:

  • Social workers / practitioners must make contemporaneous notes which form a coherent, contemporaneous record. The notes should be legible, signed and dated and record persons present during the meeting / conversation in question. The notes should be detailed and accurately attribute descriptions, actions and views hectic. Sketches / diagrams may be helpful in establishing the veracity of explanations given, e.g. in relation to how injuries were sustained;
  • Formal case-notes based upon these contemporaneous notes must be created as soon as possible in order to reduce the potential for inaccuracy / faulty recall as a result of delay. The original notes should be retained and be available to the court if required. Legal advice should be sought as to the need for disclosure of these notes to other parties in the case. If the notes constitute 'material evidence', then they must be disclosed;
  • The local authority must ensure full disclosure of all material evidence to all relevant parties at the earliest opportunity. This includes ensuring that expert witnesses have had sight of one another's evidence – a full picture must be presented to the expert witnesses in the case.