Care Proceedings & Court Orders
The Starting Point
When a local authority makes an application for an order to safeguard the welfare of a child the cases are usually referred to as public law cases. There are a number of different orders that a local authority can apply for but the most common are care orders; supervision orders; emergency protection orders and secure accommodation orders.
In these proceedings, the child is automatically a party and is represented by a Children's Guardian appointed by Cafcass. The Children's Guardian is an independent person who is there to promote the child's welfare and ensure that the arrangements made for the child are in his or her best interests. The guardian appoints a solicitor to act for the child. Occasionally the child and Guardian will not agree on what is in the child's interests and if the solicitor decides that the child is of sufficient age and understanding they will be able to instruct their own solicitor.
Public funding (legal aid) is always available for the parents, who have parental responsibility, to be represented in these proceedings and those who have parental responsibility as a result of a Residence Order for the children. All persons with parental responsibility for the children involved will be automatic parties.
The Welfare Checklist
When a court is considering making any of these orders it must have regard in particular to the delay principle and:
- The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
- The child’s physical, emotional and / or educational needs;
- The likely effect on the child of any change in his circumstances;
- The child’s age, sex, background and any characteristics of his, which the court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each of the parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child's upbringing the child's welfare is the court's paramount consideration.
These orders are usually sought by a local authority in respect of children who they believe are suffering or are likely to suffer significant harm and:
- The harm is attributable to the care being given to the child not being what it would be reasonable to expect a parent to give him; or
- That the child is beyond parental control.
No care or supervision order may be made with respect to a child who has reached the age of 17 (or 16 if the child is married).
Care orders continue until the child is 18 years, unless discharged earlier. Once a local authority has made an application for a care order the court can make a series of interim orders under s38 which gives the local authority parental responsibility and the power to remove the child from home. Further investigations and assessments are carried out before any final orders are made by the court.
While a care order is in force with respect to a child, the local authority designated by the order shall:
- Have parental responsibility for the child;
- Have the power to determine the extent to which a parent or guardian of the child may meet his parental responsibility for him.
Contact with a child in care
The local authority can make decisions as to where the child will live and with whom, and how the child will have contact with named people.
There is a positive duty on the local authority to allow reasonable contact between a child in care and their parents. What is reasonable is sometimes in dispute and in those circumstances, the court can be asked to make specific directions about how and when contact should occur.
If the local authority wants to suspend or stop, contact for a period longer than seven days they need to obtain a court order to do so. If there is a dispute between the local authority and parents about contact, either party can seek a court order to define contact. If the local authority believes that there should be no contact between the child and his parent / guardian, the court can make an order authorising the local authority to refuse to allow any contact.
Sometimes children who are the subject of care orders will remain at home being cared for by their parents, however it is more usual for children who are the subject of care orders to live with foster carers or in residential establishments.
Although the local authority has parental responsibility there are some decisions which require everyone with parental responsibility to agree including:
- Agreeing for the child to be adopted;
- Causing the child to be brought up in any religious persuasion other than that which they would have been brought up if the care order had not been made; and
- Allowing the child to live outside the UK for more than 28 days.
If agreement cannot be reached, then the court can make an order.
Where the plans for the child are for adoption or to live outside England or Wales, further court orders specifically permitting this are required. The Adoption and Children Act 2002 and supporting regulations require local authorities to give early consideration to applying for a placement order or obtaining the consent of birth parents to placement.
Children who are the subject of care orders are the subject of regular reviews by the local authority. Each child will have an individual care plan that sets out how all their needs will be met. These reviews will consider amongst other things the arrangements for contact with the family and others, as well as the child's health and educational needs. All local authorities must appoint Independent Reviewing Officers who must work to ensure compliance with care plans. The local authority has responsibilities to ensure that plans are made and preparations in place before the child is 18, to enable the child to make the transition to independence, and the local authority continues to have duties towards the child until they are 23 years old.
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
- Advise, assist and befriend the supervised child;
- Take steps that are reasonably necessary to give effect to the order; and
- Where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
- Live at a place specified by the supervisor;
- Present themselves to specific people at specific places or times e.g. to meet with the social worker; and
- To participate in activities specified on certain days.
A supervision order can also require the child to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
Secure Accommodation Orders
These orders permit a local authority to place a child in secure accommodation.
The court can make a secure accommodation order where:
- A young person has a history of running away, is likely to run away from any other kind of accommodation and if he runs away is likely to suffer significant harm; or
- If the young person is not kept in secure accommodation, he is likely to injure himself or other people.
A secure accommodation order can only be made with respect to a looked after child: if they are not subject to a care order an order can only be made for a child who is under 16 years, if the child is subject to a care order they can be placed in secure accommodation until the age of 18 years. Children under 13 can only be kept in secure accommodation with the consent of the Secretary of State.
The court's authority is not required for the first 72 hours that a child is placed in secure accommodation. However, if the local authority believes that the child needs to be in secure accommodation for longer, an application must be made to the court. The court cannot make the order unless the child is legally represented in court.
The court can make a secure accommodation order for up to three months on the first application, and then for periods of up to six months on subsequent application. However, where the child is on remand to the local authority from a criminal court having been charged with a criminal offence, different rules apply.
Regardless of the length of the court order, if during the course of the order the child no longer meets the criteria for an order, the local authority must remove the child from secure accommodation.
The local authority must make arrangements for contact between the child and their parents or seek a court order to suspend or stop contact if they believe that it is not in the child's interest for contact to take place.
There will be regular reviews of the care plan for the child and to monitor the child's progress whilst in the secure setting. These reviews should also consider the future plans for the child, once they have left the secure setting. Whilst in the accommodation the child must receive education.
Care proceedings generally take about 6-9 months to complete. There is a new Protocol (Public Law Outline) for courts to follow which aims to complete all care proceedings within 26 weeks of them starting, but of course there are always some exceptions. In that time a number of things have to happen. The case will not be immediately ready for a judge to decide it because he will need a lot more information before he/she can make such an important decision.
There are likely to be several directions hearings when the judge will make orders detailing how the procedural aspects of the case will be carried out and when each stage has to be completed – you should attend all court hearings.
Under the Protocol, these could be called First hearings, Allocation Hearings, or Case Management Conferences, which all have slightly different aims. However, we can advise you on these in more details. At such hearings, for example, the court is likely to order all the parties to file detailed statements about the case setting out their position and their side of events. The Judge may also direct that there should be expert assessment of the parents, or the children involved.
This could involve observation of the relationships or an expert view on a particular issue such as drug dependency, mental health, whether the children have suffered any harm etc. The experts would have to file their reports with the court. Social services may also have to carry out some assessments in order to present all the necessary information to the court and to know more about the family with whom they are involved. The Guardian will also have to carry out some investigations and prepare a report for the court.
Social Services will also arrange LAC (looked after child) review meetings to review the placements and the child’s other needs. Parents will usually be invited to attend all these meetings and it is helpful to go to as many as possible.
Issues Resolution Hearing
The purpose of this hearing is to see if the care proceedings can be concluded early. If this is not possible, the purpose is to identify and narrow the issues for determination at a final hearing. It will generally be concluded early if everyone in the case is in agreement, for example, about with whom the child should live and arrangements regarding contact:
- Court identifies the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
- Court considers whether the IRH can be used as a final hearing;
- Court resolves or narrows the issues by hearing evidence;
- Court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing; and
- Court gives final case management directions including
If the child’s parents and the child’s social workers are unable to agree a plan regarding the child, the case will proceed to a final hearing. The court will determine whether a Care Order or a Supervision Order is required to safeguard the welfare of the child. If the court agrees that a Court Order is necessary given the circumstances, final decisions will also be made regarding with whom the child will live and contact arrangements for the parents and wider family.
There are several possible final orders the court can make:
- Care Order: Local Authority gain parental responsibility for the child and the child becomes looked-after until the age of 18 (unless discharged before);
- Supervision Order: Local Authority are granted the power to monitor the child’s needs whilst the child lives at home or elsewhere;
- Special Guardianship Order: An Order that places a child or young person to live with someone other than their parent(s) on a long-term basis; and
- Placment Order: The Court provide permission to the Local Authority to place a child for adoption even if the child’s parents do not provide consent.