What are care proceedings?
When a local authority issues an application for a care or supervision order, this is called ‘care proceedings’. The law governing this is set out in Section 31 Children Act 1989.
In order for the Court to make a care or supervision order, they must be satisfied that a child has suffered or is likely to suffer significant harm, and that harm is either:
- attributable to the care being given to the child not being what a reasonable parent would be expected to give or
- because the child is beyond parental control.
‘Significant harm’ can include physical, sexual, or emotional harm or neglect. Emotional harm can include witnessing or being exposed to domestic abuse.
The Court Process
The local authority (children’s services) will always be the ‘applicant’.
The ‘respondents’ will be all parties who share parental responsibility (‘PR’) for the child. It is important to be aware that biological mothers will automatically have parental responsibility. Biological fathers have to acquire parental responsibility in one of the following ways:
- By marrying or entering into a civil partnership with the mother
- By having his name registered on the birth certificate
- By entering into a parental responsibility agreement with the mother
- By obtaining a parental responsibility order from the court
- By being named as the parent with whom the child ‘lives’ under a child arrangements order
The child will also be a respondent, represented via a Cafcass Children’s Guardian. It is the Guardian’s role to be the voice of the child, and to make recommendations to the Court about what is in a child’s best interests.
The parents (or those with parental responsibility) and the child will be automatically entitled to legal aid.
Once an application is issued, the matter will be listed for a first hearing. Usually this will be a Case Management Hearing (‘CMH’), unless the local authority have applied for an emergency hearing, for either an Emergency Protection Order (‘EPO’) or Interim Care Order (‘ICO’).
What is an Emergency Protection Order (EPO)?
An Emergency Protection Order is an urgent order granted by the Court if the Court is satisfied that a child is in immediate need of protection from significant harm or a risk of significant harm. It will usually last for up to 7 days. Care Proceedings will usually follow an EPO hearing.
Wat is an Interim Care Order (ICO)?
An Interim Care Order allows the local authority to share parental responsibility for a child whilst the proceedings are on-going. This gives the local authority the power to remove a child from their home and to say where a child will live, until the proceedings conclude.
The Court can only make an ICO if it decides there are reasonable grounds for believing that a child has suffered or is likely to suffer significant harm.
The Court can only sanction a child’s separation from their parents on an interim basis if they are satisfied that the risk to the child is so great that no other orders or interventions could keep the child safe, until the conclusion of the proceedings.
The five-step test for interim separation is set out in Re C (A child) (Interim Separation) [2019] EWCA Civ 1998.
What is an Interim Supervision Order (ISO)?
The Court can also make an Interim Supervision Order ‘ISO’, which allows the local authority to temporarily support the family, without sharing parental responsibilty for the child and without removing the child from the parents.
What happens at a Case Management Hearing (CMH)?
At the Case Management Hearing the Court will decide what assessments are needed to inform their decision making for the child. Decisions are made about whether any independent experts will be asked to provide reports to the Court.
Generally speaking, the Court will always direct a ‘Parenting Assessment’ of any parent who wishes to be assessed to care for a child.
They will also direct assessments of alternate carers, such as wider family members who have been put forward to care for a child. There would first be an initial Viability Assessment, and if positive, a full Special Guardianship or Connected Persons assessment would be completed.
Other common assessments include drug and alcohol testing, psychological assessments, psychiatric assessments, and risk and vulnerability assessments.
Any assessment must be necessary and proportionate in the circumstances of each case.
A timetable will be drawn up showing the dates when these assessments will be completed. Once they have been completed, the local authority will provide their final evidence and care or supervision order plans to the Court. The parents are always given the chance to respond by filing their final evidence in response, and the Children’s Guardian is always asked to provide the last report in the case.
In this report the Children’s Guardian sets out their recommendations about what is in the child’s best interests and what orders they recommend the Court should make.
The matter will be timetabled to an Issues Resolution Hearing (‘IRH’) which will take place shortly after all parties have provided their final evidence and reports.
What happens at an Issues Resolution Hearing (IRH)?
At an Issues Resolution Hearing decisions will be made about what the issues in the case are and whether it is necessary for a final contested hearing to take place so that the Judge can decide those issues. If all parties agree with the local authority’s plans for the child, the IRH can be used as a final hearing. Final Orders can be made at the IRH, even in a parties’ absence. If the parties are not in agreement, the matter will be listed for a contested Final Hearing.
What happens at a Final Hearing?
The time estimate of a final hearing will depend on the complexities in the case including how many facts need to be established and the number of witnesses. It will generally take place over multiple days. All parties’, professionals, and experts can be called to give evidence at a final hearing. The Court will hear from everyone and will make any findings which it has asked to adjudicate on and make final decisions about the child’s welfare, including with whom a child should live and how often they are to see family members.
Care proceedings should conclude within 26 weeks but can often take longer.
What are the possible outcomes of care proceedings?
The Court can make a number of orders at a final hearing.
Care Order
If a Care Order is made, this means the local authority will share parental responsibility for a child, and they can make welfare decisions for a child even if a parent does not agree. The local authority have the final say. A Care Order lasts until a child reaches 18, or until it is discharged by the Court.
It is possible that a Care Order can be made, with a care plan for the child to be placed with a family member under a connected persons foster care arrangement. The local authority will still share parental responsibility for the child, but the foster carer would be responsible for day-to-day decision making and caring.
Placement Order
If a Placement Order is made, this means the local authority are authorised to place a child for adoption.
Supervision Order
If a Supervision Order is made, this means the local authority have a duty to ‘advise, assist and befriend’ the child. They do not share parental responsibility with the parents. The parents have the final say. A Supervision Order lasts for a specified period, usually 6-12 months.
Special Guardianship Order
If a Special Guardianship Order (‘SGO’) is made, this means that the Special Guardian will share parental responsibility for the child and they can make welfare decisions for a child even if a parent does not agree. The Special Guardian will have the final say. A Special Guardian Order lasts until a child reaches 18, or until it is discharged by the Court.
This is not an exhaustive list and the outcome will depend on the circumstances of each case.
How can our child care law solicitors help?
At Hanne & Co we have a specialist child care team who represent parents, Guardians, grandparents, extended family members and children who have separated from their Guardians throughout all areas of care proceedings. We also represent parents who wish to have contact with their child(ren) in care, and on Discharge of Care Order applications.
If you have received a letter before proceedings, or a letter outlining the local authority’s intention to issue care proceedings in relation to you child(ren), or if you would like advice on how to issue an application for contact with a child in care, or to discharge a care order, please do not hesitate to contact our childcare specialist team on +44 (0) 207 228 0017 or via the form below.
If you have a query for our child care law team, contact one of our lawyers by filling out the form below or call us on +44 (0) 207 228 0017.
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