Obtaining Childcare Legal Advice

1. The Benefit of Obtaining Legal Advice

As a social worker or a person working within Children's Services you are working under an umbrella of statutory duties and obligations, regulation and are bound by decisions in case law. Almost every function for Children's Services is based in a statutory function meaning that as a worker you are doing something because there is a law allowing you or requires you to do it.

The legal team are there to help you not only to navigate the pre proceedings process and Court proceedings. The legal team want to help ensure that you are following the internal processes, best practice guidance and are compliant with your statutory and regulatory requirements. The legal team are on hand to offer guidance, support and suggest potential solutions for problems you face you to achieve the best outcomes for children and families.

The aim of the legal team is to enable those working within Children's Services to undertake their roles knowing that they are complying with the law and working effectively and efficiently. Working closely with the legal team will help you do your job.

The legal team comprises of experienced, highly trained and knowledgeable lawyers, supported by legal assistants and dedicated legal support officers who can offer advice on a wide range of complex problems which you face.

Decisions are made in line with the system of delegations within Children's Services and the legal team ensure that decision making is made correctly. Some decisions have great levels of discretion and are about balancing risk. However, some decisions allow no discretion. The Local Authority is not allowed to act outside of the law and there are reporting obligations upon every member of the legal team to the council's Monitoring Officer, who is also the Chief Legal Officer. The legal team will follow your instructions as much as possible however the overriding obligation of solicitors is to the Court and the Council as a whole.

Public children's law is a specialism requiring the legal team not only to know the law but the application of that law in Courts, the pre proceedings process and from a regulatory perspective. The legal team are required to consider the wider reputational and fiscal implications of the advice we provide as well as ensuring policy and process are followed.

There are very few, if any areas, of Children's Services work where the legal team had not and does not provide advice. The legal team, like any good solicitor, aims to assist our clients to make informed decisions and guiding them through complex processes.

Legal advice is not limited to an explanation of the law and your obligations. The legal team offer practical solutions, providing multiple options where possible and help you weigh the implications of each potential outcome.

The legal team, like the Children Act, place the child at the centre of all decisions and our advice takes into consideration the law (statute, case law and regulations), policy, professional guidance and social work theory and practice.

The legal team are designed to challenge your plans, assessments and evidence in order to ensure that your decision making is robust, your plans and evidence are comprehensive and will stand up to challenge. The legal team will inform you of the risks and potential criticism which you face and assist you to minimise this while progressing your plans ensuring that you have considered all of your options.

2. Accessing Generic Legal Advice

General advice will include where there is consideration in respect of Judicial Review; Age Assessments; assessments for private fostering; enquires disclosure requests from the police or connected to court proceedings; and any legal question that you want you know the answer to.

When in private law proceedings the legal team will check S.7 and S.37 reports and letters to Court before they are filed. When such a report / letter is allocated to a social worker the legal team should be contacted to ensure that it is allocated. Where a S.37 report is recommending either pre proceedings process or care proceedings are commenced approval to enter those processes must have been granted in accordance with paragraph 6 of this document.

General enquires should be made in writing to the Childcare Legal Support Team SBCChildCareLegalSupportTeam@swindon.gov.uk and they will then be allocated.

Formal legal planning meetings are not held were there are general enquires into the legal. The advice will be provided in either writing or verbally. Where verbal advice is provided this is not followed in writing as a matter of course. If written advice is needed please let the legal team when seeking advice as this will then be provided in writing.

Briefing notes may be provided which give a generic legal overview to the area in which advice is sought at the discretion of the lawyer.

3. Accessing Legal Advice to Enter Discharge a Care Order

When the Local Authority are seeking to discharge a care order the legal team require that the social worker has gone through various processes to confirm that the Local Authority are ready to discharge the care order. This is not an area where a legal planning meeting is required if the following process is followed:

1. Where there is a decision by the social worker that the plan for the child should be altered the social worker should arrange a permanence planning meeting to discuss with the relevant professionals whether the plan should be altered. The attendance at the permanence planning meeting will be determined by the Permanence Planning Guidance;
2. The social worker should prepare an updated assessment for the purpose of attending a Looked After Children's Review. This will need to consider any replacement order and replacement plan / support to include if the child will remain subject to Local Authority intervention;
3. There should be a Looked After Children's Review and it should be recorded if the IRO agrees the plan to discharge and the replacement plan for the child should be agreed /discussed. If this is not agreed this does not prevent the discharge application but this is likely to be known within the proceedings and it would be favourable to consider resolving any internal dispute prior to the discharge application being made;
4. The social worker should draft a statement, ensure any assessments (Special Guardianship Assessment) or plans (i.e. Supervision Order, Special Guardianship Order or Child In Need plan) and working agreements are drafted and all documents provided to legal for consideration;
5. The matter will then be allocated to a member of the legal team.

Should there need to be a discussion more generally on the merits or processes of discharging a care order this will fall under the remit of 'general advice'.

4. Accessing Legal Advice to Enter Revoke a Placement Order

In the event that the Local Authority are seeking to revoke a Placement Order (which means that the Care Order will be the lead order for the child) the legal team require that the social worker for the child and the family finding social worker have followed the below process. This is not an area where a legal planning meeting is required. Should there need to be a discussion more generally on the merits or processes of discharging a care order this will fall under the remit of 'general advice'.

1. Where there is a decision by the social worker that the plan for the child should be altered the social worker should arrange a permanence planning meeting to discuss with the relevant professionals whether the plan should be altered. The attendance at the permanence planning meeting will be determined by the Permanence Planning Guidance;
2. The social worker should prepare an updated assessment for the purpose of attending a Looked After Children's Review. This will need to consider any replacement order and replacement plan / support to include if the child will remain subject to Local Authority intervention;
3. There should be a Looked After Children's Review and it should be recorded if the IRO agrees the plan to revoke;
4. The social worker and family finding social worker will need to update the CPR for the child and submit this to the ADM (in accordance with the normal process) with all previous ADM documents for reconsideration of the plan;
5. The ADM will determine if permission is provided to revoke;
6. If permission is granted by the ADM, then the social worker should draft a statement, ensure any assessments (Special Guardianship Assessment) or plans (i.e. Supervision Order, Special Guardianship Order or Child In Need plan) and working agreements are drafted and all documents provided to legal for consideration;
7. The matter will then be allocated to a member of the legal team.

5. Discharge or Extension of a Supervision Order

Supervision Orders will lapse on the date listed within the Order granting them. It will be a very rear occasion when the Local Authority seeks to discharge a Supervision Order rather that allowing it to lapse or expire. This is simply due to the length of the process involved in the discharge and invariably the expiration will be sooner that taking the matter though the court.

Where the Local Authority are seeking to extend a Supervision Order they should ensure that they follow the process for consideration and monitoring Supervision Order which should include:

1. The social worker should prepare an updating assessment at least 2 months before the end of the period of the Supervision Order. This will need to consider any replacement order and replacement plan / support to include if the child will remain subject to Local Authority intervention;
2. There should be a permanence planning meeting to consider the plan and the service manager should attend to confirm whether the Supervision Order should be extended;
3. There should be a Child in Need Review and it should be recorded if the professionals agrees the plan to extend;
4. The social worker should then seek a place at gateway panel for permission to issue;
5. The social worker should draft a statement, and an updated Supervision Order plans and working agreements are drafted and all documents provided to legal for consideration;
6. The matter will then be allocated to a member of the legal team subject to the decision of gateway panel.

6. Accessing Legal Advice to Where There is a Deprivation of Liberty Suspected

Please refer to the policy on Restricting a Child's Liberty or Secure Orders. The social worker will need to complete the referral form in accordance with that policy and then a solicitor will be allocated and a LPM held.

7. Accessing Legal Advice to Enter The Pre Proceedings Process or Commence Care Proceedings

Globally referred to as the Public Law Outline (PLO) process this section deals with the process of seeking legal advice take action under S.31 Children Act. This will potentially result in either entering the pre proceedings process or a decision to commence care proceedings.

Legal Gateway Panel

LPM's considering entering the pre proceedings process or care proceedings are conducted at a gateway panel.

If the social work team believe that there is a need to progress to a Legal Planning Meeting (LPM) they should complete the LPM request form and send to the Court and Pre Proceedings Manager. The document must be completed in full and relevant documents, as set out on the form, attached.

The IRO or Child Protection Chair (known jointly as the 'reviewing team') has a role in considering whether cases should progress to panel and the reviewing team can make recommendations that legal advice is sought at any stage. The reviewing team will be asked to add their views to the LPM request.

If the social work team does not agree with the decision to seek legal advice at that time the escalation process should be followed by the reviewing team. The legal team can be asked to review and offer advice to the social work team at that stage but cannot offer case specific advice to the reviewing team once a conflict arises. Advice can be offered to the reviewing team under the agreement with partner Local Authority's.

The Service Manager will discuss the case with the Court and Pre Proceedings Manager then made a decision by the Service Manager whether or not to progress to an LPM and this will be recorded on the request form.

If the LPM request form and all supporting documents are submitted the gateway panel for consideration the Court and Pre Proceedings Manager will add the family to the case tracker.

The Head, or principal solicitor of Adult and Children's Legal Service Team will allocate the matter following the panel.

Urgent Legal Planning Meetings

If the need for an LPM is considered to be to urgent for the LPM request form to be completed then the social work team should contact the legal team duty lawyer to discuss the matter in the first instance and consider if urgent action is required.

A decision will be taken by the Lawyer (in consultation with relevant management) that an LPM is arranged. The team manager may chair the meeting if a Service Manager is unable to attend an urgent LPM but a Service Manager must be involved in the final decision making process.

Purpose of Legal Planning Meetings

The LPM is an essential part of the process for dealing with public law children's cases under the public law outline however they are also an important factor in the decision making of the local authority.

The Public Law Working Group Best Practice Guidance: Support for and work with families prior to court proceedings sets out that “The aim is to support local authorities to make consistent, timely and balanced decisions as to whether to initiate pre-proceedings. Safely managing risk, while building on family strengths and energising wider family support, is critical. Encouraging families to embrace this opportunity as opposed to embarking on the steps towards proceedings should be the aim…

The fact that the legal threshold has been met does not always mean it is right, or proportionate … to proceed to pre proceedings or instigate care proceedings. Progress with some families where the child is on a child protection plan can feel slow or absent or there may be a need for specialist assessments or tests. However, this should not be the driving factor in decision-making to escalate towards the PLO. Despite the threshold being met, thorough consideration should be given as to what can be done differently to achieve progress without escalating towards the PLO process.”

The legal team can assist in the decision making process about whether or not it is necessary to progress into the legal arena. This can be through seeking a Legal Planning Meeting (LPM) or more informal advice through the duty system.

When should a LPM meeting be requested?

An important balance should be struck between working supportively with the family to bring about change, the potentially damaging impact of delay for the child and the risk of the situation escalating to crisis point leaving no alternative to the issuing of care proceedings; potentially at short notice which is rarely in the families best interest. It is also important that appropriate support is in place to facilitate the effective participation of the family. This may include non legal advocacy services, intermediaries or interpreters, for example. Applications for such services can be made without attendance at Children's Resource Panel and Service Managers can authorise this expenditure.

There are some key points offered in the Best Practice Guidance for when a family should be considered for presenting at legal gateway meeting or advice sought from the legal team. This is not an exhaustive list and the points, below, are simply offered for the reflection and deliberation of social workers and senior managers. These are:

1. Where a pre-birth conference decides a child is to be made the subject of a child protection plan ahead of birth and there is no active involvement from the extended family;
2. Where a child has a child protection plan and parental engagement with the process, and support services, has been persistently inconsistent and ineffective, limiting progress and putting the child at risk of significant harm;
3. Where the child has a child protection plan and there has been no progress and/or the impact of the identified concerns has worsened at the point of the second review conference. Every care should be taken to recognise change takes time, particularly where families are experiencing longstanding challenges;
4. Families that have previously been through the pre-proceeding process and similar concerns re-occur within a 12-month period;
5. Families where the mother or father have had child(ren) removed from their care in the past and there is concern that any presently identified risks cannot be managed with the children remaining in the parents' care;
6. Families where the risks and concerns are sufficiently significant that the matter is highly likely to proceed to court, but allowing time for the pre proceedings process.

Making the decision to seek legal advice

In reaching the decision to seek legal advice, the Best Practice Guidance recommends that the following points should be considered:

1. What is the lived experience of the child(ren) and how is it impacting on their wellbeing?
2. Is it believes that the legal threshold met to commence pre-proceedings or to issue immediate care proceedings?
3. How long has social care been involved with the family? What are the concerns, and the history of such concerns, of the local authority and/or other agencies?
4. Have any changes been made within the family to mitigate the risk factors?
5. What support services have been offered to the family?
6. How has the family engaged with these services and what is the impact on the children's wellbeing / outcome of this engagement?
7. What needs to change/happen and what is the plan for the family moving forward?
8. How have social and cultural differences and inequalities been addressed? Have interpreters been consistently used whilst working with the family?

In the case of an unborn child the policy on unborn children should be consulted.

The Legal Planning Meeting

The LPM which takes place at Panel is to be chaired by a Service Manager or above.

The LPM should be attended by the social worker and team manager. A member of the reviewing team will be invited to provide their views in writing.

The purpose of the meeting is to consider all the information available and decide if the legal threshold is met to commence pre-proceedings or to issue immediate care proceedings. It is also necessary to consider what is the aim, objective and purpose of any legal intervention and the appropriate plan during legal intervention in the families lives.

The chair's role is to consider all the information and advice available and decide the most effective course of action to promote the safety and wellbeing of the child(ren). The chair should hear from the social worker, the IRO and then from the legal adviser before making any decisions.

In forming a plan for the family all members of the LPM will identify:

1. The specific issues, risks and mitigating factors of relevance at this time, which will include known historical concerns;
2. Continuing support or any additional direct work to be undertaken with the child(ren) during this period;
3. Specify further support the local authority could offer the family to mitigate identified risks;
4. How the local authority will continue to assess the risks and/or track positive changes in this period;
5. Any expert assessments that are required – including who is being assessed, for what purpose, who will undertake this assessment plus the likely duration;
6. Family members who are to be consulted to offer either support or be assessed as alternative carers. The early sharing of necessary information with extended family and the use of a FGC (or similar model developed and used locally) is essential, unless there is good reason why this is impracticable;
7. Make a record that the duration of pre-proceedings process will commence from the date of the first LPM meeting and agree the frequency of review meetings;
8. When the pre-proceedings letter will be sent in order to communicate with the family and agree when the pre-proceedings meeting will take place. The letter should be drafted in the meeting;
9. If appropriate, particularly if the decision is given that progressing to the pre proceedings process or care proceedings is not appropriate, a timetable for the family a return date for further LPM should be agreed;
10. The meeting should also identify any evidential gaps and how these can be remedied;
11. Where the decision is taken to commence care proceedings a timetable for doing so should be agreed and what documentation is needed;
12. Any potential issues/documentation regarding parental capacity to litigate should be flagged up at the meeting;
13. Consideration should be given to what is a suitable care plan for each child:
    • The proposed care plan for the child, including the proposed placement and any cultural, language and ethnic issues, the need for a twin track plan, consultation with parents and the wider family, whether any family members are available to care for the child on an interim or permanent basis, if so whether the required checks have been made, the proposals for contact;
    • How the proposed Care Plan is to be achieved, including twin tracking of connected persons assessments, viability assessment and the Adoption Panel process;
    • Have there been previous Court proceedings in relation to the family? If so, what steps are required to obtain the papers in relation to the case from the Court or another local authority?
    • Delay for the child in achieving permanence with reference to the timeframe for each child should be considered with reference being made to where the child is placed, the age of the child and any special characteristics of the child / family which might influence the plan.

Review/Subsequent Legal Planning Meetings

Where the decision is made at the LPM not to enter any legal processes and remain either in Child or Need or Child Protection processes the decision will be made if a review LPM should be booked in. A date will be agreed for the review LPM and the social worker will be required to provided an update to the LPM request form and updated documentation.

Where the first pre proceedings meeting has not taken place within 4 weeks of the LPM or the matter has not been issued in the agreed timescale then a review LPM will be needed.

8. Recording of All Legal Planning Meetings

Notes of Legal Planning Meetings will be prepared by the legal team and circulated to all attendees.

The decision and reasoning will be minuted. It is essential that these minutes are detailed, accurate, concise and clear. They will be recorded on the LPM template unless the meeting was urgently arranged and a note is needed quickly.

These are legally privileged and should not be made available to anyone outside of the Local Authority parents or other parties in any potential proceedings without the permission of the chairperson or Director and legal should be consulted upon the implications of sharing.