Child Care Solicitors & Care Proceedings
At NJP Solicitors we have a team of family solicitors who can help with child care proceedings and matters involving social services. We can help wherever you are based and can meet via video conference if required.
Are social services involved with your family? If so, it is essential you know what court orders the local authority might seek, and how the court will decide what orders to make.
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If a local authority is concerned about the safety or welfare of a child, then it may apply to a court for a care order. A care order has the effect of giving the local authority parental responsibility for the child and means that the local authority can decide where the child should live.
If the local authority believes that it would be in the best interests of the child for them to be adopted it can also apply for a ‘placement order’, which enables the local authority to place the child with suitable adopters.
It is important to note that, save in exceptional circumstances, a child cannot be removed from its parents without a court order, or the agreement of the parents.
Because they involve a public authority, care proceedings are often referred to as ‘public law’ cases.
The exceptional circumstances mentioned above are where the police have reasonable cause to believe that a child is at risk of significant harm (see below for what this means). In such a situation the police may remove the child from the parents. This is known as ‘police protection’. No child may be kept in police protection for more than 72 hours, and the police must notify the local authority as soon as is reasonably practicable after taking a child into police protection.
Care proceedings can take many months to complete (there is a 26-week time limit for cases to conclude, but the court may set a longer timetable), and obviously, it may be necessary to protect the child whilst the case proceeds. Accordingly, the court can make an interim care order, which lasts until the end of the case.
However, even an interim order can take time to obtain. Accordingly, in urgent situations the court can make an ‘emergency protection order’, authorising the removal of a child from its parents for up to eight days.
A care order can only be made if the court 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.
This is known as the ‘threshold criteria’.
So what is ‘significant harm’?
“Harm” is defined as the “ill-treatment or the impairment of the health or development” of the child, “including, for example, impairment suffered from seeing or hearing the ill-treatment of another”. “Development” means physical, intellectual, emotional, social or behavioural development; “health” means physical or mental health; and “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical, such as emotional abuse.
Whether the harm is ‘significant’ depends upon the facts of the case. The harm must be “considerable, noteworthy or important”. A one-off incident is unlikely to be considered significant, unless it is very serious, such as sexual abuse or a serious physical attack. However, less serious incidents repeated over time may be significant.
Just because the court finds that the threshold criteria have been met does not automatically mean that a care order will be made. There is a second stage to the test that the court must follow: the welfare stage.
In the welfare stage, the court must ask whether it is in the child’s best interests to make a care order.
What is best for the child’s welfare depends upon a number of factors, including the harm that the child has suffered or is at risk of suffering, the capability of the child’s parents, the child’s physical, emotional and educational needs, the ascertainable wishes of the child and the likely effect on the child of any change in their circumstances.
An alternative to a care order is a supervision order. Under a supervision order, the child usually remains with the family, but a social worker will continue to visit and monitor the family. Supervision orders usually last between six months and a year.
Supervision orders are made on the same grounds as care orders – i.e. the two-stage test (threshold criteria + welfare stage).
Another type of order that the court can make in a care case is a special guardianship order. This gives parental responsibility for the child, and the ability to make most decisions in relation to the child, to ‘special guardians’, who will often be members of the child’s extended family, such as grandparents, aunts or uncles.
Procedure on care applications
The exact procedure that a care case follows will vary, depending upon the circumstances of the case. However, the following steps will take place in a typical case:
Pre-Proceedings Meeting – Save in an emergency situation, care proceedings will only be initiated after all efforts have been made to keep the child with their birth family. A pre-proceedings meeting is a final attempt to prevent the matter going to court. Before the meeting, the parents will receive a letter from the council outlining the council’s concerns. The letter will invite the parents to attend the pre-proceedings meeting, which must take place within seven days of the letter being received. If you should receive a pre-proceedings letter then you should immediately seek legal advice – see below.
Case Management Hearing – This is a short initial hearing, fixed after proceedings have been issued. At the hearing the court will give case management directions, including identifying the key issues and the evidence necessary to enable the court to resolve those issues.
Issues Resolution Hearing – The purpose of this hearing is to see if the care proceedings can be concluded early. This can happen if everyone involved in the case can agree on a plan for the child. If this is not possible, the hearing will be used to identify and narrow the issues for determination at a final hearing.
Final Hearing – At which the court will hear all of the evidence, and make a final decision. This hearing will usually take several days.
Free legal advice and representation is always available for parents involved in care proceedings, and for anyone else who holds parental responsibility for a child involved in the proceedings. It doesn’t matter what your income is, legal aid in this type of case is not means-tested.
If the local authority have raised concerns about your child then it is important that you seek legal advice as soon as possible. With proper advice, you may even be able to avoid the case going to court or you child/children being removed from your care.