Care Proceedings

What are care proceedings?

If social workers from a Local Authority are involved with your family and are applying to court for a care or supervision order for your children, you are ‘in care proceedings’.

If an order is made by the court it can mean that your right to family life is interfered with permanently. For example the children could be taken into care and may be adopted into another family.

Getting legal advice

Legal advice for parents is free

Parents and children are entitled to free legal advice and lawyers representing them in court. This legal aid is not ‘means and merits’ tested so you will get it whatever your financial circumstances.

The children’s guardian

All children in care proceedings are represented by a children’s guardian who is employed by CAFCASS. The guardian appoints a law society children panel solicitor to represent them in court. This applies to all children, even newborn babies. They instruct the solicitor for the children and through their lawyer, make recommendations to the court about what they think should happen to the children. The role of the guardian is to speak for each of the children and to tell the court what’s in their best interests. You might think why can’t the Local Authority do that – surely they’ll have the best interests of the children at heart. That’s not necessarily the case. What if a child needs expensive extra help or a specialist placement. The Local Authority may not want to fund it. So the role of the guardian and the solicitor for the children is key. They should be telling the court what’s best for the children, irrespective of funding issues, Local Authority budgets and social work manager’s opinions. It’s also important to remember that the social worker in the case and the guardian won’t always agree on the outcome of the case. Or at least that’s how it should be.

Children can instruct their own solicitor

Older children who are assessed as having the capacity to instruct their own, separate solicitor can do so. This happens when their wishes conflict with those of the children’s guardian. They are then able to give instructions to their own lawyer who will represent them in court.

Parents must have solicitors

Parents should always try to find a solicitor familiar with these kinds of cases. The law society keeps a list of approved solicitors to do this kind of work so try to get one of those. You can find your local accredited solicitors here.

Tip: If you know other families involved in similar cases try to find out who’s good. Lawyers are not all the same even if they’re on the list. Knowing the law is not the only skill that’s needed.

The point of parents being represented is obvious. The Local Authority case will be centred around their concerns about the children and what they believe to be the best course to take to protect them. The parents views will not be the same as the Local Authority’s and the parents must have a chance to contradict what’s being said and put their views forward. Maybe you’re feeling you haven’t been given enough help to sort out your problems or that you might be easily helped because they are caused by ill health or poverty. Maybe you think the Local Authority is overreacting or the social worker has it in for you. Maybe what’s in some of the Local Authority statements isn’t true or misrepresented in some way. There are lots of reasons why both parents should have a say. Sometimes parents can’t agree with each other so they need to have separate representation. In that case parents have different solicitors.

Failings in the system mean you have to be even better at managing your case

There are failings in the system due to cutbacks which make it more important than ever that you know how to get the best outcome.

Time pressure: The time the guardians are allowed to spend on cases is much reduced, the quality of the guardians is not as good as it was and cases are whizzed through the court system like a sausage machine with little if any expert input. One of the rules which is enforced very strictly is the number of weeks cases are to be before the court. It’s no more than 26 weeks. The argument goes, it’s best for the child if decisions are made quickly. That’s right of course if things are done properly but not if the investigations and assessments are poor and ill judged. Judges can only make decisions based on the evidence and if it’s poor and inadequate the decision must be questionable.

Reduced expert input: Nowadays the social workers and guardians are deemed to be the experts. It has been decided that they are knowledgeable about issues which were previously considered to be outside their expertise, such as child or adult psychiatry or clinical psychology.

These rules are a great excuse to use though if you want to save money and you don’t care about the outcomes and the effect on families.

What affects the outcome?

Many applications for care orders come before the court because of very serious problems with the parenting children are receiving. Don’t underestimate how bad some cases can be. In such cases, if parents are not able or willing to acknowledge the problems with their care of their children and are not able to listen to advice and show that they will act on it, care orders are likely to be justified and right. The court will prioritise what the children need above what parents want. It’s pointless, for example, to argue that you must get the children back because otherwise you won’t survive. The court will not alter it’s decision.

But some cases aren’t so easy to decide. Some parents will cooperate and can change to parent well enough with help, advice and guidance. I know some families who’ve succeeded from a very bleak beginning. So the question for the professionals and the court is how to tell the difference between the cases that can do well and the ones that can’t and pick the ones that might be successful to give them a chance.

How to give yourself a better chance of succeeding.

Top tips to getting a better outcome:

• Clearly read what’s in the application and the Local Authority evidence to see exactly what’s being said about your parenting and the deficiencies;
• Take what’s being said seriously and be prepared to admit you’ve got it wrong if you have. Actually accepting, not just pretending to accept, the criticism of your parenting goes to your credit and professionals will think they can work with you;
• Listen to advice and guidance and try to make changes to your parenting;
• Try to see it from the children’s perspective and show them you’re trying to get things right;
• Accept help that’s on offer and use it positively;
• Don’t refuse to accept that something needs to change unless it really is the case that the Local Authority has got it completely wrong, for example if it is alleged an accident is non-accidental;
• Don’t take on the social worker or guardian in a confrontational, rude manner. They hold the trump cards;
• Be cooperative and comply with requests to do things. If you have supervised contact, arrive on time, bring whatever is necessary and handle it well;
• Make sure you understand the process. Get your solicitor to explain what’s likely to happen and give you advice about how to deal with meetings and how to behave;
• Keep all the appointments you are asked to attend. If you have to cancel, give notice and explain. Arrange a new appointment if you can;
• Don’t prioritise your partner or refuse to separate from your partner if they’re deemed to be a risk because of their sexual, physical or other abuse of children unless, you don’t mind losing the children;
• Show your positives and use them to your advantage in contacts with the children.

What else can you do?

Understand the importance of record keeping

All the professionals involved will keep records.

Every time you or the children are seen by a social worker they’ll make a note of what they saw, what was talked about, the advice they gave and their expectations. Or at least that’s what they should do. They’ll end up with a file of records which if necessary they can then use to base a statement on in court proceedings. This statement will be part of the evidence upon which they will rely. Everyone who’s involved with you will have done the same – teachers, other social workers, support workers, the police, contact supervisors etc. Then if a guardian is appointed they’ll do the same.

You need to keep records too.

You can’t assume things will work out in your favour. Don’t assume all the professionals will be fair and reasonable. Maybe they see things differently to you and their concerns are justified. But, even if they are right, they shouldn’t do things badly, be biased or unprofessional. And these things happen.

You’ll be sent their long statements or reports of what’s happened and what they say you were told and advised. If they are wrong or inaccurate and you don’t recall it the same way you need to be able to dispute it and be believed. Just saying you don’t accept their account is unlikely to get you anywhere. But if you’ve kept records, like the professionals do, you’ll have something to rely on that’s got some credibility.

Often I’ve been told by clients social workers arrive late and don’t stay long or don’t arrive at all. But what they’ve put in their statement differs. They will want to show they’ve been spending time with you to be able to argue you had a fair chance and a proper assessment. But a couple of meetings lasting 15 minutes in 26 weeks may not be adequate. The same goes for advice. Make sure you record the advice you were given on each occasion. Then compare the records with the statements. It may not be enough to swing the case in your favour but it’s better than leaving it to the court to guess which account is true. Who knows you may record something that’s gold when all the evidence is available. At least you’ll know you prepared like a professional.

ONRECORD is designed for this purpose and helps you to keep an even better account than the professionals. Use the mobile app to make a record of each conversation, meeting or event as soon afterwards as you can, because no one can then say you’ve concocted things after the event to suit your argument. Keep records of each meeting and make sure you note how long they went on for and the timings, when the appointment started and ended, as well as what happened and what was said. Note every meeting not just the upsetting ones because you need to be able to compare what’s said in the statements and reports with your own records of what occurred.

The law

What does a Local Authority have to prove to get a care order or a supervision order?

Who has to prove the case?

The application is made by the legal department of the Local Authority. Their evidence comes from the Local Authority’s social workers in their social services department. They may have other witnesses such as school teachers, GPs or the police. The police would be involved, for example, if they have information about domestic abuse incidents they’ve attended.

Threshold

The Local Authority has to prove that your child is not receiving the sort of care it would be reasonable to expect from a parent and that this is causing the child significant harm. The Children Act 1989 introduced significant harm as the threshold which justifies compulsory intervention in family life in the best interests of children. The court has to decide this key issue of whether or not a child is suffering significant harm. This decision will of course be based on the evidence, so your proper representation will be crucial.

What is meant by ‘harm’?

The court may only make a Care Order or Supervision Order if it is satisfied that:

1. The child is suffering, or is likely to suffer significant harm; and
2. That the harm or likelihood of harm is attributable to a lack of adequate parental care or control (Section 31).

’Harm’ is defined as the ill treatment or impairment of health and development. This definition was subsequently clarified by section 120 of the Adoption and Children Act 2002 to include ‘impairment suffered from seeing or hearing the ill treatment of another’ for example, where there are concerns of domestic abuse.

Harm can be:

Harm is made worse by:

• The extent of premeditation;
• The degree of threat, coercion, sadism, and bizarre or unusual elements.

They make the harm more serious because they’ve been associated with more severe effects on the child and/or relatively greater difficulty in helping the child to overcome the adverse impact of the maltreatment.

There usually needs to be a pattern of harmful parenting

Sometimes a single traumatic event may constitute significant harm, e.g. a violent assault, suffocation or poisoning. More often, though, significant harm is due to a pattern of harmful behaviour, lack of action to care for the child or neglect, which goes on over a period of time and which interrupts, changes or damages the child’s physical and psychological development. Typically in neglect, it is the damaging effect of long term neglect that causes impairment to the extent leading to significant harm.

The court also takes into account the welfare checklist.

Why do some parents not parent well enough?

Parents who harm their children may suffer from:

• Drug or alcohol abuse
• Mental illness, depression and personality disorders.
• Poor parenting they themselves received
• Their own abusive experiences as children such as sexual abuse, neglect, domestic abuse in the home
• Learning disability

What happens if an order is made?

An emergency protection order

Usually care cases start because an emergency protection order has been made. An emergency protection order is to protect the child from harm by emergency removal from a place or the requirement to stay in a specific place. Otherwise they start because the social work department suspects that a child is suffering or is likely to suffer significant harm or when a child is in police protection, because the police have intervened and removed the child.

What orders can the Local Authority ask for?

The Local Authority usually applies to the family court for either a care order or a supervision order.

Care orders

When a child is made the subject of an interim or final care order, the Local Authority gets parental responsibility for the child, which means that they can make all the decisions about the child. As the actual parents you will continue to have parental responsibility too. However, the Local Authority can limit your parental responsibility if this is deemed to be in the interests of the child’s welfare. For example they decide where your child will live and predominantly this is away from home.

Supervision orders

A supervision order is another order that can be made. It’s much less severe. It gives the Local Authority the power to monitor your child’s needs and progress while the child lives at home or somewhere else. Conditions can be attached to a supervision order. It usually only lasts a year but can be extended for up to 3 years. Most importantly, a supervision order doesn’t give the Local Authority parental responsibility and doesn’t allow them any special right to remove the child from you. You keep parental responsibility but mustn’t act against the supervision order conditions.

The care plan

The Local Authority has to make a care plan to describe how they intend to care for the child if an order is made. If a care order is made, which passes parental responsibility to the Local Authority, the care plan is the responsibility of the Local Authority, as the child’s new parent, and not of the court. Although the court will be interested to know what the Local Authority’s care plan is, it cannot order the Local Authority to change it.

Adoption

It’s important to know that the younger the child the more likely the Local Authority plan will be for adoption if a final care order is made. It’s almost inevitable that the plan for babies will be adoption. This will be made clear to you during the proceedings and be written into the care plan. Adoption means that the adoptive parents take on all the parental responsibility. There will be a huge reduction in your contact with the child, maybe even no face to face contact at all. So the stakes are very high. Your right to family life can be ended permanently.

Residential placement

If not adoption, how will the decision about where the child lives be decided?

The Local Authority will take into account a number of points including:

• Your wishes as parents;
• Your child’s wishes;
• The need to place your child near your home so that your child can keep in touch with friends and relatives, if this will be good for your child but as we say above the plan might be adoption;
• Whether or not brothers and sisters should be kept together.

The Local Authority will investigate the possibility of a family placement if there is a relative who could have parental responsibility (or a child arrangements order) granting them residence.

If this isn’t possible the Local Authority will look at the following options:

• Placement with a Local Authority foster parent;
• Placement in a children’s home; or
• Another suitable arrangement for the child’s care.

The Local Authority’s obligations

If a Local Authority makes a placement they must try to ensure the following needs are met:

• The child lives near their home;
• The child’s education or training is not disrupted;
• Siblings can live together if they are all in care – sometimes this is not achieved;
• The placement is suitable for the child’s needs if they are disabled.

When a Local Authority decides where a child is going to live they must:

• Look after the child’s welfare and progress in school;
• Try to consider the wishes and feelings of people who are important in the child’s life, including parents or people with parental responsibility;
• Try to consider the child’s wishes, taking into account their age and level of understanding;
• Consider the child’s religion, race, cultural background and first language.

The Local Authority will try to agree the placement with the social worker, you and the child, unless the child needs secure accommodation (a residential placement where the child is prevented from leaving)

If it isn’t possible to agree the placement, the Local Authority has the right to decide where the child should live without the consent of the parents or the child.

Foster carers

Fostering means that the social services department arranges for a child to live with foster carers where they’re cared for in a family environment. These foster carers can work directly for the Local Authority or through a foster agency. A child can be placed with foster carers long term or short term, depending on the circumstances of the placement. The placement might be a permanent arrangement or temporary whilst parents overcome a problem such as poor health.

Children’s homes

Children’s homes can either be run by a Local Authority, or by private or charitable organisations such as Barnados. They are run by paid staff. In general, children in children’s homes tend to be older. Younger children are placed wherever possible in foster homes.

Contact with a child in care

If the child is not adopted the Local Authority must encourage and allow contact between a child in care and parents, relatives and friends. Arrangements for contact proposed by the Local Authority will be set out in the care plan which you’ll see before the final hearing. If you’re unhappy with what’s proposed, tell your solicitor and try to get more.

If the Local Authority wants to change the agreed or ordered arrangements for contact, the social worker must discuss the proposed changes with all the people involved. The Local Authority cannot stop contact between you and your child without a court order unless it considers the situation is urgent, when it can only stop contact for up to seven days. They will have to go back to court if they want to stop contact for a longer period or indefinitely, giving their reasons.