Having recently reached 7 months post-pupillage I realise it has reached that time of year once again where pupils are beginning their second six, colloquially known as being ‘on one’s feet’ for the first time. What I’ve particularly noticed, however, is the reluctance of both pupils and very junior tenants to even touch public law children work. I had the somewhat unusual advantage that, before I started my pupillage, I worked as a paralegal for a firm which exclusively represented a few Local Authorities, and I have always enjoyed the gritty, ‘human’ nature of care proceedings. Therefore, I thought it might assist to write an article which serves as an introduction to care proceedings. Whilst this is primarily aimed at junior practitioners, it may be of some assistance to trainee solicitors, or even those who are navigating care proceedings personally.
As a disclaimer, I cannot reasonably cover the entirety of care proceedings, as this is a multi-faceted and at times very complex area of law – I am going through the basics of Section31 Children Act 1989, the types of hearings you will likely encounter, and some of the terminology.
The first thing to note is that care is an area that is absolutely full of acronyms. My former co-pupil, when we were both still baby barristers, would look at me with wide-eyed disbelief as I mentioned ICOs, CMHs, FCMHs and IRHs without considering that they weren’t exceedingly clear to others. I will try to use the full names of different concepts in this article!
Care cases are governed by s31 Children act 1989 and as a result they are often referred to as s31 proceedings. Under s31 of the Act, the Court has the power to make care orders and supervision orders. The Applicant is almost always the Local Authority (with some exceptions, such as when parents later apply to discharge a care order after the original s31 proceedings have ended), and their applications are started by way of a C110a. Applications are made via the family public law portal, an online service.
A care order gives the Local Authority shared parental responsibility for a child, whilst a supervision order places the child – you’ve guessed it – under the supervision of a Local Authority. This differs to a child simply being under a child in need plan (a ‘CIN plan’) or a Child Protection plan (a ‘CP plan’) in that it imposes a duty on the LA to ‘advise, assist and befriend’ the child.
Whether a LA applies for a care order or a supervision order depends on the risks to the child – if they consider they can be managed at home, a supervision order will be applied for. However, it’s important to note that a care order does not in itself mean separation. Whilst it is very common for a child to be placed in foster care away from their birth parents, at an interim stage it may well be that the child is placed with the parent in a specialist child and parent placement if that is a possibility. This is of course on a case-by-case basis.
Of course, care proceedings are not a ‘one and done’ area of law. As with any other area of law, the Court needs to be satisfied the relevant legal tests are met before making any final orders. That does not mean that a child stays with their parent until the very end of proceedings, or that the Local Authority has no powers/duties imposed whilst proceedings are ongoing. This is where we meet interim care/supervision orders.
The first hearing, known as the ICO hearing, is where the Local Authority makes its first application for an interim order, whilst the remainder of the hearings will be evidence gathering until final decisions can be made. The legal test for an interim care or supervision order is the same as the test for a final order, and that is:
“A Court may only make a care order or supervision order if it is satisfied –
- That the child concerned is suffering, or is likely to suffer, significant harm; and
- That the harm, or likelihood of harm, is attributable to –
- The care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
- The child’s being beyond parental control.”
When trying to satisfy this test, the Local Authority rely on a document referred to as the threshold. An interim threshold is made at the beginning of proceedings, and a final threshold is made closer to the end of proceedings. The threshold sets out what the local authority’s concerns are, whether they be drug use, domestic abuse, neglect or anything else which makes the child suffer or likely to suffer significant harm. The threshold must be backed up by evidence – it is not enough for a Local Authority to say they have concerns, there must be a factual matrix – even if it is not yet agreed or proved. A threshold which is backed up by facts is known as being Re A compliant, named after the case of Re A [2015] EWFC 11 – this case deserves an article in itself, but many have already been written so I will advise you do some of your own research into this. The Local Authority must also establish a causal link between a concern cited in threshold and actual harm or risk of harm to a child. By way of example, drug use in itself is insufficient; the LA must prove the parent(s) drug use impacts parenting to such an extent it (a) exposes the child to actual harm or risk of harm and (b) the parenting is not what a reasonable parent would give to a child.
The parents must be given a chance to respond to threshold. As a lot of ICO hearings are at short notice, this is generally directed at the first hearing – though counsel is expected to tell the Court at the ICO whether the parent generally agrees or opposes threshold. Once the proceedings have gone on for a while and evidence has been gathered, the LA can make a final threshold. This stops them from being bound by their initial threshold – it may well be that some concerns are disproved, or others come to light or were more significant than initially believed. If threshold is agreed, or if enough is for the Local Authority to rely on, a composite threshold may be made, which provides the Court an agreed set of facts. Otherwise, the Local Authority will draft a final threshold and, if the parent/s disagree with its contents a final hearing will require evidence to determine threshold issues. It is really important that parents do respond to threshold – it is not uncommon for the Court to determine that it can make final orders at the IRH stage if a parent has repeatedly failed to respond! A Court cannot make a final order without an agreed or proved threshold, however, if parents consistently refuse to respond to threshold, the Court can make findings in lieu of a response.
Going back to foster care, which I’ve mentioned in passing, it is usual at the first hearing for the Local Authority (if they are seeking an interim care plan) to seek separation of the child from his or her family. The relevant case law here is Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998, [2020] 1 FLR 853 which sets out a five-point test:
- An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made to regulate matters that cannot await the final hearing and is not intended to place any party to the proceedings at an advantage or a disadvantage;
- The removal of a child from a parent is an interference with the right to respect for family life under Article 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent/child bond;
- Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria;
- A plan for immediate separation is therefore only to be sanctioned by the Court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur; and
- The high standard of justification that must be shown by a Local Authority seeking an order for separation requires it to inform the Court of all available resources that might remove the need for separation.
We’ve dealt with the initial points – applications, ICOs/ISOs, and threshold. We’ve also touched upon final orders (to an extent). Let’s talk about the middle of proceedings.
After the ICO hearing, you then have the Case Management Hearing (CMH). Depending on the case, you may also have a number of further Case Management Hearings (FCMHs). These hearings are where the Court will review the application including any proposed care plan for the child, set directions as appropriate (for example hair strand testing, statements or disclosure) and, if necessary, review the 26-week timetable that care cases are supposed to stick to.
You then have the Issues Resolution Hearing/Early Final Hearing (‘IRH/EFH’) which takes place once all of the evidence is complete and every party has set out their position for future care of the child(ren). At this point, the parties come together to see whether any agreements can be reached. As I touched upon already, if a party has failed to respond to threshold, the Court may be in a position to make final orders. Sometimes at this point, parents have decided that it would be in the child’s best interests for them to be made subject to final orders, and it is at the IRH that they make this position known and the Court can make final orders.
Finally, you have the final hearing. These are often a few days in length and require evidence of multiple witnesses (usually a social worker – or two, or three, or four…you get the gist – the parent/s, the Child’s Guardian etc), so the Court is able to make determinations on threshold and make a final order.
The final outcome depends on the case, but the usual outcomes you will see are:
No Order: The child returns home, the Local Authority loses its parental responsibility (if it had it) and matters ‘return to normal’, so to speak.
Final Care Order: The Local Authority obtains overriding parental responsibility for the child (i.e. their PR trumps the parents) and the child is placed in long-term foster care. Usually the LA reduces any contact the parent was having with the child until it steps down to letterbox contact, perhaps once or twice a year.
Final Supervision Order: The child returns home, but the LA has the duty to ‘advise, assist and befriend’ – when a Final Supervision Order is made the Local Authority will produce a Supervision Order support plan which sets out what work they will be doing to support the parent/s and child and to prevent the matter returning to Court.
Placement (Adoption): This is the most draconian option, and can only be exercised when all other options have been considered and anyone who could possibly be considered to care for the child has been exhausted. The parents lose their parental responsibility and the child is made available for adoption. Despite any opposition from any person who has Parental Responsibility for the child, the Court can still proceed with a placement order and can dispense with the parents consent to that adoption if the child’s welfare demands it.
Special Guardianship Orders: albeit a private law order, this author has seen this made a number of times in care proceedings. When a person (usually a friend or family member) who has been put forward by the parent/s to care for the child in the parents’ place has a positive assessment, an SGO may be made which gives that person (known as the special guardian) overriding parental responsibility for the child. I would posit that an SGO is a very positive outcome when there is no/a slim chance for the child to be returned to the parent, as they remain ‘in the family’ to an extent, and the special guardian can help with facilitating contact potentially for the rest of the child’s childhood. In fact, this author wrote an entire article on SGOs in care proceedings, which you can read here.
We’ve now covered all of the basics, and therefore this article comes to a close. I don’t know what it is about care proceedings that intimidate so many junior practitioners. Perhaps it’s the sheer amount of acronyms, or that it’s not something taught in university (I remember my Family Law module at University, and I can safely say the Human Fertilisation and Embryology Act is yet to come up in my work, whereas the Children Act 1989, which did not form part of the curriculum, is something I deal with daily!). Whatever it is, I hope that this article will help to demystify some of the primary concepts in care proceedings and empower pupil/junior barristers to get stuck in!
Members of Becket Chambers can assist with public law children matters. Please contact the Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
