Care Proceedings

Care proceedings are Public Law Children Proceedings applied for by the Local Authority under Section 31 (S31) of the Children Act 1989. The Local Authority may also be referred to as Social Services or Children’s Services.

The Children’s Services local to the child will make an application to the Court to ask for either an Interim Care Order or Interim Supervision Order.

You can find out more about Care Proceedings on the Government website.

 The following parties automatically get Legal Aid. It does not matter how much money you make or what the merits of your case are:

• All parties with parental responsibility
• Biological parents (even if they do not have parental responsibility)
• The subject children

Other individuals (usually family members who are joined as parties) do not automatically get Legal Aid unless they also have parental responsibility.

However, if their financial situation and the merits of the case allow it, a full application for Legal Aid can be made.

At Crane & Staples, we offer legal aid for eligible parties in care proceedings. Please contact us to arrange and appointment.

Care Order

A Care Order is an order that would give the Local Authority parental responsibility for the child. The Local Authority will be able to make decisions for the child that the parents would usually make. An example of this will be deciding where the child should live. The Orders made by the court will either be Interim or Final, depending on when they are made in the proceedings.

• Interim Care Order: An Interim Care Order is a temporary order which is issued during care proceedings and is not long term.

• Final Care Order: A Final Care Order places the child in the care of Children’s Services and will last until the child turns 18, unless discharged.

Supervision Order

A Supervision Order is an order which would place the children under the supervision of the Local Authority.  It would not give the Local Authority parental responsibility for them.  Instead, it would place the Local Authority under a duty to advise, befriend, and assist the children and provide any support that is necessary to ensure all of their needs are met.

The No Order Principle

The no order principle is set out in S1(5) of the Children Act. The court must ask itself whether it will be better for the child to make the order than make no order at all. If not, then the court must not make an order.

Does a Care Order remove Parental Responsibility?

A care order does not remove parental responsibility. If the children are made subject to Placement Orders (allowing the local authority to find adoptive placements for them at the end of proceedings), then when a final adoption order is made, the parents will lose parental responsibility at that point.

A solicitor will represent you within Care Proceedings. They will prepare your statements, explain the process step by step, and advise you about the documents and reports. These proceedings can be lengthy and complex. Therefore, a solicitor will support you by helping you to understand the process at every step.

At Court hearings, your solicitor may represent you themselves. Alternatively, they may instruct a specialist barrister if required.

 There are separate legal tests for:

• if a Section 31 Children Act Order should be made; and
• the removal of a child from their parents’ care.

The threshold test – S31(2) of the Children Act 1989

For a Section 31 Public Law Children Act Order to be made, the Court must be satisfied that the threshold test in S31(2) of the Children Act 1989 is met.

This is:

• That the child concerned is suffering, or 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 them if the order were not made, not being what it would be reasonable to expect a parent to give to them; or
• The child being beyond parental control.

For an interim Order to be made, the Local Authority must prove that there are reasonable grounds to believe the threshold is met.

The threshold criteria for final Care Orders is a higher threshold. The Local Authority must prove the threshold is met (rather than prove they have reasonable grounds to believe it).

If an interim care order is made, it does not automatically mean that the child is removed from the parent’s care.

What is the test for removal in Care Proceedings?

For the removal test, there is a 5-stage test which must be followed.

This is a high-level test that with strict and rigorous criteria. Your Solicitor will advise you about your case. They will help you understand the criteria and if, or how, it might apply to your situation.

 A letter may be sent to parents and all people with parental responsibility which warns of a risk of care proceedings. You may be invited to a Public Law Outline (PLO) meeting. You can find out more about the PLO process here.

How are Care Proceedings initiated?

 The Social Work Team and the local authority legal team will prepare the documents needed, which include:

• C110a application form.
• Initial statement.
• Threshold statement.
• Initial care plan.

These will then be issued by the local authority at the court where they and the children are based.

As soon as care proceedings are issued, the parents, child, and anyone with parental responsibility are entitled to free legal advice under Legal Aid. The judge will consider how urgent a hearing is needed and then list a first and possibly a second hearing. If very urgent, there will be an Interim Care Order Hearing listed very quickly. This can even be the same day, or within a day or two of the proceedings being listed.

The second hearing is a case management hearing. Here, directions are made by the Court in respect of any evidence that is required. This is to enable the Judge to make a decision at the end of the case.

Then, assessments take place. They will give recommendations to help guide the court in making decisions.

There will be the Issues Resolution Hearing (IRH). This hearing is to resolve any issues in the case. In some cases it is possible for cases to finish at the IRH, if everything is agreed. If not, the Court makes sure everyone is ready for the Final Hearing to take place.

There will be a Final Hearing if needed. This can be short or over a period of many days, depending on the type of case.

Usually, care proceedings cannot be stopped. However, if the evidence supports it, an application can be made to withdraw the proceedings. Permission of the court is needed before even applying.

This is very rare and the best thing to do is work with the process and engage with assessments.

The Local Authority are the Applicant within proceedings. The parents (and anyone with parental responsibility) are automatically Respondents. The children are also Respondents to the proceedings, and they will have a Solicitor and a Guardian.

Party status gives a person the right to the Court bundle, which are all the court papers. It also gives them the right to attend hearings and make submissions to the Court. This will be done by their legal representative on their behalf.

CAFCASS is The Children and Family Court Advisory and Support Service.

They represent the interests of children and young people in the family court.

What do Guardians do in Care Proceedings?

A Guardian will be appointed from CAFCASS. They will then instruct a solicitor too.

The Guardian is independent and has been appointed by the Court. They have a duty to investigate and see all the parties in the case, as well as the child and other people who are significant to the child’s life. It is very important to cooperate with the Children’s Guardian and their investigations. The Court gives significant weight to the recommendations made by the Guardian. The Guardian’s primary role is to safeguard the child’s interests.

In some cases, it may be appropriate for a child to have a separate solicitor to their Guardian. This is in cases where the child is of sufficient age and understanding to give their own instructions to a solicitor. Also, when there is a conflict between the child’s view and the Guardian’s views. This tends to be when the child is a teenager. The child’s legal team will assess if they are competent to give their own instructions.

This depends on what order is made by the court.

An Interim Care Order could order removal to one of the below:

• foster care
• a residential placement
• a residential assessment unit, with one or both parents
• a family member

An Interim Supervision Order is where the child will remain with the parent or another family member.

Parents can agree to the child being accommodated by the Local Authority (Foster Care, family placement) under agreement using section 20 of the Children Act.

Care proceedings must finish within 26 weeks (6 months) of being issued. This is under section 32 (1) (a) (ii) Children Act 1989.

They can be extended if exceptional circumstances require it. An application should be made by the Local Authority for this.