Care Proceedings

Care Proceedings

When a local authority makes an application for an order to safeguard the welfare of a child the cases are usually referred to as Care Proceedings.  There are a number of different orders that a local authority can apply for but the most common are care orders, supervision orders and emergency protection orders.

In these proceedings, the child is automatically a party and is represented by a Children’s Guardian appointed by Cafcass (Children and Family Court Advisory and Support Service). 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 court also 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 the solicitor.

As a parent if you are involved in care proceedings you will be able to get legal aid.  Other relatives might be able to get legal aid for this type of case in some circumstances.

How does the court make a decision?

When a court is considering making any of these orders it must have regard in particular to

The Welfare Checklist

The court also takes into account that any delay is not likely to be in the children’s best interests.

  1. The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
  2. His physical, emotional and / or educational needs;
  3. The likely effect on him of any change in his circumstances;
  4. His age, sex, background and any characteristics of his, which the court considers relevant;
  5. Any harm which he has suffered or is at risk of suffering;
  6. How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
  7. How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
  8. 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.

The court try to make sure that all care cases are concluded in less than 26 weeks.

Emergency Protection Orders (EPO) – Section 44 Children Act 1989

These orders are obtained from the court to ensure the short term safety of a child. read more...

The court will only make the order if they are satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if:

  1. he is not removed to accommodation provided by the local authority or
  2. he does not remain in the place where he is currently being accommodated e.g. in hospital.

In exceptional circumstances a local authority can apply for an EPO without notice to the parents.

Usually an application for an EPO will be made on notice to the parents. This gives them an opportunity to come to the court and advise the court of their views and plans to safeguard the child.

An emergency protection order is only a short order granted for up to a maximum of 8 days but can be extended for a further seven days. The order grants the applicant parental responsibility but only permits him to take such action as is reasonably required to safeguard the welfare of the child.

The court can give directions it considers appropriate with respect to the contact the child is to have with any named person or any medical or psychiatric examination or assessment of the child under S44 (6). If the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessments.

Care Orders – section 31 Children Act 1989

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.read more...

  1. 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
  2. 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 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 shall:

  1. have parental responsibility for the child;
  2. have the power to determine the extent to which a parent or guardian of the child may meet his parental responsibility for him.

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.

Contact

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 authorizing 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:

  1. agreeing for the child to be adopted;
  2. 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;
  3. 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.

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.

Supervision Orders – section 31 Children Act 1989

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.read more...

These orders do not give parental responsibility to the local authority, but when there is a supervision order in force it is the duty of the supervisor to:

  1. advise, assist and befriend the supervised child
  2. take steps that are reasonably necessary to give effect to the order and
  3. 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:

  1. live at a place specified by the supervisor;
  2. present themselves to specific people at specific places or times e.g. to meet with the social worker;
  3. 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.

What is the role of the Cafcass worker in all this?

The Cafcass worker’s most important role is to make sure your children are safe and to help make sure that the decisions made about them are in their best interests. In care and placement proceedings, their job is to check the local authority’s plan and make sure that it is the best possible for the child. It is also to let the court know what they think should happen. Cafcass workers are independent and do not work for the local authority or the court. It is very important that you are able to work in an open and honest way with the Cafcass worker.

What will the Cafcass worker do?

The Cafcass worker will

  1. advise the court on what work needs to be done before it can make a decision about your children’s future.
  2. write a report for the court on what they think is best for your children. This will include information on your children’s wishes and feelings which you will be able to read before the court hearing.
  3. spend time getting to know you and your children before they write their report for the court. They will also talk to other people who know your family, such as teachers, social workers and health visitors.
  4. Go to relevant meetings about your children,
  5. check records and have the right to read the local authority’s case file.
  6. They may also recommend to the court that other independent professionals help the court with advice, such as a doctor or a psychologist.
How long will it the proceedings take?

The court has to try to conclude a care case within 26 weeks

During this time all sorts of people, including the Cafcass worker and the local authority social worker will be trying to understand the reasons why your children may be at risk and what can be done to keep your children safe. They will carry out assessments to help decide whether your children can return home or whether they should stay in care. There may also be assessments of other family members or friends who may be suitable carers if your children do not return home.

As part of the assessments of you the court will look at whether you are able to work with the professionals like the social worker and the Cafcass worker. It is important that you try to work with these people even though you might not agree with what they are saying.

Sometime the court will ask an expert like a psychologist or psychiatrist or some other medical professional to carry out an assessment. These assessments are usually carried out for the court’s benefit which means that anything you tell the expert could form part of the expert’s assessment. This means that what you tell the expert is not confidential.

What will happen in the end?

It is the court’s job to decide what will happen to your children

The judge will listen to everyone involved in the case including you, your solicitor, the local authority social worker and the Cafcass worker before making a decision.

If the judge is satisfied that it is safe to do so, children will go back home and many children do go home in the end. For others, the local authority will find them a new home. That may be with other members of their family or with friends, or it may be with a new family.