Care and Supervision Proceedings and the Public Law Outline

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. 

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).

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) (para 33(ii) (c). Interim Guidance has now been issued by the Family Justice Council.

2. Pre-Proceedings

2.1 Principles

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.

Pre-proceedings work includes:

• Early help – see Swindon Safeguarding Children's Partnership Multi-Agency Threshold Guidance - The Right Help at the Right Time;
• Assessments and meeting assessed needs (see Assessments Procedure). 

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.

• Family group conferences and the identification and assessment of family and friends placements, if appropriate (see Swindon Borough Council Family and Friends Policy);
• Helping families to engage early - this engagement should include early, direct and clear written communication with the parents, setting out the local authority's specific concerns, outlining what needs to be done to address those concerns and indicating the possibility of proceedings if the situation does not improve within an identified timescale. It is important that throughout this period, the child (subject to his or her age and understanding) is kept aware of what is being proposed and that his or her views are heard. This may include by way of an advocate for children and/or for parents where there are issues of capacity (see President of the Family Division, Family Proceedings: Parents with a Learning Disability).
  
  Where pre-birth involvement is a result of the mother's learning difficulties causing uncertainty as to her ability to meet the needs of the child once born, the Court of Appeal in D (A Child) [2021] EWCA Civ 787 stressed the importance of effective planning during the pregnancy for the baby's arrival, and of taking adequate steps to ensure that the mother understands what is happening and is able to present her case.
  
  See also the Parents with Learning Disabilities Procedure, Good Practice / Good Practice Guidance on Working with Parents with a Learning Disability (2007);
  
  
• Legal Planning Meetings – see Legal Planning Meetings Procedure.

Sir James Munby, as 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:

• 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;
• The employment of a local authority case manager is vital. The case manager works directly with social workers and managers, with the intention of improving the quality of social work Assessments and statements presented to court. The aim is that statements are purposeful, concise and clearly lay out the work that has been undertaken up to that point. The Case Manager works in a coaching role to help social workers produce high quality statements and to be explicit about the impact of delay on each individual child.

2.2 Legal Planning Meetings

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

At the Legal Planning Meeting, a decision will be made in principle about whether the Threshold Criteria have been met and whether:

• It is in the best interests of the child to provide a further period of support for the family with the aim of avoiding proceedings; or
• Proceedings should be initiated immediately.

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:

• A letter before proceedings which states that proceedings are being contemplated; or
• A letter of issue which states that proceedings are being initiated.

(Standard letter templates are included at Appendix 1: Letter Before Proceedings; and Appendix 2: Letter of Issue).

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.

2.3 Letter Before Proceedings

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:

• A summary in simple language of the local authority's concerns;
• A summary of what support has already been provided to the parents;
• What the parents need to do and what support will be provided for them, to avoid proceedings, including timescales;
• Information on how to obtain legal advice and advocacy, making clear how important it is for the parent to seek legal representation.

The letter should invite the parents/others with Parental Responsibility to a pre-proceedings meeting (see Section 2.4, Pre-Proceedings Meeting).

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.

2.4 Pre-Proceedings Meeting

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:

• Agree a revised plan for the child, which should be subsequently confirmed in writing to the parents, 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;
• 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 6 weeks of the meeting to ensure that sufficient progress is being made.

3. Starting Care or Supervision Proceedings

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 reviewing 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.

3.1 Pre-Birth Planning and Proceedings

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 [2016] 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).

It continues to be important to ensure for both the child and the parent(s):

• Any hearing should be considered a 'fair hearing' commensurate with Article 6 of the Human Rights Act (the right to a fair trial);
• The fact that a hospital is prepared to keep a newborn baby is not a reason to delay making an application for an ICO, (the hospital may not detain a baby against the wishes of a parent/s with PR and the capability of a maternity unit to accommodate a healthy child can change within hours and is dependent upon demand);
• Where a Pre-birth Plan recommends an Application for an ICO to be made on the day of the birth, 'it is essential and best practice for this to occur'.

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'.

Good Practice Steps

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 Pre-birth Plan should be rigorously adhered to by social work practitioners, managers and legal departments;
• A risk assessment of the parent(s) should be 'commenced immediately upon the social workers being made aware of the mother's pregnancy';
• The Assessment should be completed at least 4 weeks before the expected delivery date;
• The Assessment should be updated to take into account relevant events pre - and post delivery where these events could affect an initial conclusion in respect of risk and care planning of the child;
• The Assessment should be disclosed upon initial completion to the parents and, if instructed, to their solicitor to give them opportunity to challenge the Care Plan and risk assessment;
• The Social Work Team should provide all relevant documentation (see Section 4, Documentation) necessary to the local authority Legal Adviser to issue proceedings and application for ICO:
  • Not less than 7 days before the expected date of delivery;
  • Legal Services must issue on the day of the birth and certainly no later than 24 hours after the birth (or the date on which the local authority is notified of the birth).
• Immediately on issue – or before - the local authority solicitor:
  • Should serve the applications and supporting evidence on the parents and, if instructed, their respective solicitors;
  • Should have sought an initial hearing date from the court, or the best estimate that its solicitors could have provided.

4. Documentation

4.1 Local Authority Documentation

Documents to be Filed with the Court

(Note that some courts may require electronic submissions. Your legal department will be able to advise).

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 – including any early identification of Connected Carers;
• 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.

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.

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;
  • Any issued as to jurisdiction/international element should be flagged with the court.

Principles

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:

• 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:
  1. Serial number;
  2. Date;
  3. Event-detail;
  4. Witness or document reference (where applicable);
  5. The Chronology should be no more than 10 sheets and sides of A4 text unless specifically directed by the court.
• The social work statement should be no more than 25 sheets and sides of A4 text unless specifically directed by the court. (This is exclusive of exhibits). It is to be limited to the following evidence:
  • Summary:
    • The order sought;
    • Succinct summary of reasons with reference as appropriate to the Welfare Checklist.
  • Family:
    • Family members and relationships especially the primary carers and significant adults / other children;
    • Genogram.
  • Threshold:
    • 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 (see Practice Direction 3AA - Vulnerable Persons: Participation in Proceedings and Giving Evidence);
    • 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'.

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.

Local Authority Case Summary

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.

Final Care Plan

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 information about the long term plan for the child, including timescales (the Permanence Plan);
• The arrangements to meet the child's needs in line with the child's developmental needs domain of the Assessment Framework (see Assessments Procedure):
  • Arrangements for promoting the child's health, detailing GP and other arrangements, particularly where there is a health condition that requires monitoring or treatment;
  • Early Years provision and education, detailing the PEP (identifying the resources and services that will meet the child's needs, together with any additional support that has been assessed as required);
  • Contact arrangements for the child with the parents and others who have Parental Responsibility, together with any other significant people the child has relationships with, (for example a sibling in another placement), detailing the frequency and any support required. Or, where no contact is sought, the reasons for this and why it is not in the child's best interest;
  • Details of any court orders sought, e.g. section 8; section 34; Placement Order, etc.
  • Details of any other local authority or voluntary body services and resources that are planned to be taken up by the child or their parent/carer and the reasons for this, together with who will be responsible for the arrangements. Also, to include possible future support the child may be entitled to, e.g. leaving care arrangements;
  • Details of the Placement Plan and why the placement was chosen and the way in which it will meet the child's needs;
  • The wishes and feelings of relevant people about the arrangements for the child;
  • The wishes and feelings of those people about any proposed changes to the Care Plan;
  • Details of the review of any arrangements made or required, including the name of the IRO and who, or which, agencies will be involved;
  • Identification of a contingency plan in the event that the Care Plan is not achieved.

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.

4.2 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, highlighting any gaps in the evidence and additional assessments / actions required, 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;
• An analysis of parenting capacity to meet the child's needs, including any gaps and whether these gaps can be bridged within the child's timescales;
• A child impact analysis, including:
  • An assessment of the impact on the child concerned of any harm that he or she suffered or was likely to suffer;
  • 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;
  • Interim Contact needs of the child.

• A contingent, early permanence analysis (by reference to a welfare and proportionality analysis) including:
  • An analysis of the proposed placements, whether by family member/family friend; adoption; or other long-term care;
  • The way in which the long-term plan for the upbringing of the child would meet the current and future needs of the child, (including needs arising out of that impact of any significant harm, or likelihood of it);
  • Contact framework;
  • Any additional support that the placement will require from partner agencies.
• Whether and if so what communication it is proposed there should be during the proceedings with the child by the court.

4.3 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.

5. 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.

Where a party has requested an urgent hearing:

1. 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
2. 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.

6. Case Management Hearing

A greater emphasis is placed on the first hearing, Case Management Hearing. 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.

7. The Timetable for the Child and the Timetable for Proceedings

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 statement of the child's special educational needs;
• 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 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.

See also Protocol and Good Practice Model: Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Direction Hearings (October 2013).

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.

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.

7.3 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.

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 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.

8. 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.
• 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.

Decisions about commissioning such evidence should be made early in the proceedings, usually at the Case Management Hearing.

9. Good Local Authority Practice During Proceedings

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:

• 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 etc. 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.

10. Case Management Checklist and Flowcharts

10.1 Pre-Proceedings

10.2 Stage 1 - Issue and Allocation

10.3 Stage 2 - Case Management Hearing

10.4 Stage 3 - Issues Resolution Hearing

10.5 Public Law Outline 2014 (26 weeks) Flowchart

Click here to view the Public Law Outline 2014 (26 weeks) Flowchart.

11. Parallel Criminal Investigations

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'):

• The local authority should ensure that documents relating to family court proceedings are not included in the files to be examined by the police. Instead, the local authority will provide a list of such documents without describing what they are (e.g. by providing a copy of the redacted court index), in order for the police and/or the CPS to apply to the family court for disclosure;
• The local authority can disclose to the police, documents relating to family court proceedings where the police officer to whom disclosure is made is a member of a dedicated child protection unit and/or is exercising powers of police protection under section 46 of the Children Act 1989, and the disclosure is for the purposes of child protection and not for the purposes of the criminal investigation;
• The local authority can disclose to the police, documents which are lodged at court or used in the proceedings which already existed prior to the commencement of the family court proceedings (e.g. pre-existing medical reports);
• The text or summary of a judgment given in the family court proceedings can be included in the files to be examined by the police;
• Where material is disclosed to the police, it cannot be further disclosed to any other parties (e.g. the CPS) for the purposes of the criminal investigation without the express permission of the family court.

Appendices

Appendix 1: Letter Before Proceedings.

Appendix 2: Letter of Issue.