5.3.4 First Steps in Care Proceedings

Why?
What does this mean for Children's Social Care Services?
How Long does it Last?
First Hearing in Care Proceedings
Initial Social Work Statement
Significant Harm - Section 31 Children Act
Which Order, if any?
Who is Involved in the Proceedings?
Identification and Instruction of Expert
The First Hearing
Giving Evidence

1. Why?

The root of the Local Authority's involvement in the Child Protection area stems from its duty under Section 47 of the Children Act, which states :

1.1 Where a Local Authority :

are informed that a child who lives or is found in their area :
1. is the subject of an Emergency Protection Order or
2. is in Police Protection or
3. has contravened a ban imposed by a curfew notice within the meaning of Chapter 1 of Part 1 of the Crime Disorder Act 1998
has reasonable cause to suspect that a child who lives or is found in their area is suffering or is likely to suffer Significant Harm:

the Authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.

Section 47 provides a statutory basis for carrying out investigations. The Section describes a duty imposed on the Local Authority.

As a result of Section 47 investigations, other decision-making processes take place which lead to the decision to implement care proceedings. Such a decision is usually taken by a Legal Planning Meeting and in any event has to be sanctioned by a Service Manager. The constituent members of such a meeting are clearly set out in the internal guidance of a departmental Intranet.

Section 47 provides for three separate scenarios, that of an existing Emergency Protection Order, a Police Protection Order or a referral which arouses a suspicion that a child within the area is likely to suffer Significant Harm.

The vast majority of care proceedings stem from situations where Children's Social Care Services have conducted a Section 47 Investigation rather than from the situation of a preexisting Emergency Protection Order or Police Protection Order.

Naturally the existence of either such Order dictates the pace at which Children's Social Care Services must respond. Police Protection is a power which is exercised by the Police under Section 46 of the Children Act in circumstances :

Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer Significant Harm, he may :
1. remove the child to suitable accommodation and keep him there or;
2. take such steps as are reasonable to ensure that the child's removal from any hospital, or other place in which he is then being accommodated is prevented;
For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section, is referred to as having been taken into police protection;
As soon as reasonably practicable after taking a child into police protection, the constable concerned shall:
1. inform the Local Authority within whose area the child was found, of the steps that have been and are proposed to be taken with respect to the child under this section and the reason for taking them;
2. give details of the authority within whose area the child is ordinarily resident ("the appropriate authority") of the place at which the child is being accommodated;
3. inform the child (if he appears capable of understanding):
  1. of the steps that have been taken with respect to him under this section and of the reasons for taking them and;
  2. of the further steps that may be taken with respect to him under this Section.
4. take such steps as are reasonably practicable to discover the wishes and feeling of the child;
5. secure the case that enquired into by an officer designated for the purposes of this Section by a Chief Officer of the Police area concerned.

As soon as reasonably practicable after taking the child into Police Protection, the constable is obliged to take such steps as are reasonably practicable to inform the child's Parents, any other person with Parental Responsibility or any other person with whom the child is living immediately before taking into police protection.

Section 46 (7) states that no child may be kept in Police Protection for more than 72 hours.

2. What does this mean for Children's Social Care Services?

It is important to note the maximum period a child can be in police protection is 72 hours. It is frequently the case that a child is taken into Police Protection during the night. It is therefore vital that upon learning of the situation, you should establish precisely the time at which the police powers were implemented. This will directly influence the timing of any subsequent actions by the Social Work Team.

If a decision is taken that a Legal Planning Meeting must be held to decide whether Court proceedings are required, it is important to arrange the timing of that meeting to allow sufficient time for applications for either an Emergency Protection Order , an Interim Care Order or an Interim Supervision Order to be made within the currency of the Police Protection Order. If a Police Protection Order is allowed to expire, the police will be unable to detain the child further, similarly the Local Authority will have no power to retain the child in its care. Whilst this Section allows the police to detain the child for 72 hours and hand the child to the Local Authority, neither the police nor the Local Authority acquire Parental Responsibility for that child during the 72 hour period. In certain situations the Local Authority may feel it needs to acquire Parental responsibility hence the need for Children's Social Care Services to consider what further legal steps are required.

Authority for seeking an Emergency Protection Order lies within Section 44 of the Children Act. This Section allows that "any person "may apply for an Emergency Protection Order". In practice this is rare, and generally it is Local Authority Children's Social Care Services who take this step. The Court may only make an Emergency Protection Order if 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 or on behalf of the applicant or;
2. he does not remain in the place in which he is then being accommodated;
In the case of an application by the Local Authority :
1. enquiries are being made with respect to the child under Section 47 (1)(b) and;
2. those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency....

An Emergency Protection Order operates as a direction to any person who is in a position to do so, to produce the child to the applicant. It also authorises the Local Authority to remove the child or prevent the child being removed from places such a as hospital or any other placement. The Emergency Protection Order, unlike the Police Protection Order, endows the Local Authority with Parental Responsibility. This will allow the Local Authority to make certain decisions on behalf of a child which may not be acceptable to a Parent at an early stage, such as giving Consent to routine medical treatment or more frequently, giving permission for the child to be the subject of a video recorded memorandum interview with the police and Children's Social Care Services. It is open to the Local Authority to seek any other specific directions required, from the Court at the hearing of the Emergency Protection Order.

How do we make the application?

The Legal Department will advise you as to whether the matter is sufficiently serious to merit making an 'ex parte' application, that is without notice to any other persons who normally would participate in such a hearing. Such situations are rare as both the Court and the Local Authority have to have regard to the Parents' rights under Article 6 and 8 of the Human Rights legislation. These rights are the right to enjoy a private family life and the right to a fair hearing. Any steps taken to interfere with either right, must be 'necessary' and 'proportionate'. The Court in considering an application requires the applicant to seek leave to institute an application for an Emergency Protection Order. Only in a minority of cases do Emergency Protection Order applications proceed without notice to the Parents. The obvious practical consequence of these is that prompt action is required as any application for an Emergency Protection Order has to physically come before the Court before 3pm, other wise the application has to be made to an out of Hours Magistrate which will take several more hours; hence, the need to alert the Legal Department as a matter of urgency if such an application seems likely.

3. How Long does it Last?

An Emergency Protection Order can be made for a period of up to 8 days but this period of 8 days runs from the first day of the Police Protection Order. In cases of both police protection and Emergency Protection Orders, time is calculated by calendar days and not working days.

Once a decision has been made to institute proceedings, the Legal Dept. will prepare the necessary Court application forms based upon instructions received at the Legal Planning Meeting. The Family Proceedings Court is the first tier of Court within the family Court structure. Cases are presided over by other District Judges who are legally qualified, lay magistrates who are not legally qualified or Court Clerks who are legally qualified. Certain powers are devolved to the legally qualified Court Clerks to allow them to conduct non-contentious hearings dealing with routine matters such as directions for filing of evidence and timetabling cases.

The next tier of Court is the Principal Registry of the Family Division. This is a designated care hearing centre and operates at a County Court level. Cases at this Court are presided over by District Judges. Beyond this, matters of extreme complexity, length or where international issues are involved, are generally transferred to the High Court of the Family Division which sits at the Royal Courts of Justice in the Strand. Having taken a decision to institute proceedings, for an interim care or supervision order (not For an EPO), your actions are then directed by the provisions of the Public Law Protocol. The Public Law Protocol is the product of the Lord Chancellor's Advisory Committee on judicial case management in public law cases.

The aim of the Protocol is to reduce delay and reinforce the principles set out in Section 1(2) of the Children Act 1989 which requires the Court to "have regard to the general principle that any delay in determining any question is likely to prejudice the welfare of the child". Decisions in the European Court of Human Rights have also emphasised the need for "exceptional diligence" in the context of children's cases. The key aims of the Protocol are to ensure consistency of the case management at all levels of Court; the timetabling of cases to Final Hearing at the earliest possible stage; the reduction of intermediate hearings; more vigorous control of experts as well as control of the content and quality of Court documentation. The aim is, where possible, to bring all children's cases to Final Hearing within 40 weeks of commencement.

4. First Hearings in Care Proceedings

The Public Law Protocol dictates the timetable for each procedural step and which documents are to be filed at each stage.

Day 1 : Designated as the date upon which the written application is sent to the Court asking for a hearing date.

Day 3 : The Local Authority is required to file and serve its evidence before the initial hearing on Day 6.

The documents which are to be filed on Day 3 are :

The Initial Assessment or Core Assessment
Any Section 37 Report already in existence
Any additional evidence upon which the Local Authority seek to rely (e.g. medical or school reports)
A Social Work Chronology
Initial Social Work Statement

The Protocol does acknowledge emergency situations where it has been necessary to apply for an Order prior to the completion of the initial assessment. In such cases, you are required to carry out the initial assessment as soon as possible. Obviously those detailed directions as to filing evidence will not apply in applications where Emergency Protection Orders are sought

The style and format of the Chronology required on a first hearing will inevitably be briefer than the existing Social Work Chronology held on your files. The Court requires "a schedule containing a succinct summary of the significant dates and events in a child's life in chronological order. It is a running record which can be updated during the proceedings."

The schedule headings are :

Serial number
Date
Event / Detail
Witness or document reference (where applicable)

5. Initial Social Work Statement

This statement should be strictly limited to the following evidence :

The precipitating incident (s) and background circumstances relevant to the grounds and reasons for making the application including a brief description of any referral and assessment processes that have already occurred;
Any facts and matters that are within a Social Worker's personal knowledge;
Any emergency steps and previous Court Orders that are relevant to the application;
Any decisions made by the Local Authority that are relevant to the application;
Information relevant to the ethnicity, language, religion, culture, gender or vulnerability of the child and other significant persons in the form of a "Family Profile" together with a narrative description and details of social care services that are relevant to the same.
Where the Local Authority (i) applying for a Interim Care Order and / or is proposing to remove or continue the removal of a child under an, Emergency Protection Order, the Local Authority's initial proposals for the child including placement, contact with the Parents, other significant person and the social care services that are proposed.
The Local Authority's initial proposals for further assessment of the parties during the proceedings including twin track planning;
The Social Work timetable for tasks and responsibilities so far as they are known.

Please note there is no obligation to file a separate Care Plan as you will be required to do at later stages in the proceedings. The plan for the child can be incorporated within the body of the Statement. Remember that the background of the matter has been set out in both the assessment and Chronology filed with the Court, therefore the Court is interested in reading about your professional view of the background and the reasons which led to your decision to seek an Order from the Court and your proposed plans for the future.

When drafting your Statement, you should bear in mind that in proceedings relating to children "hearsay" evidence is allowed. This means that you are able to recite information, obtained directly from your own interactions and observations or from information provided from other agencies or the recordings of other Social Work colleagues on the Social Work record. The Court is relying upon the quality of your written evidence to decide whether or not to grant the application to the Local Authority. In the first instance, the Court accepts the written evidence of the Local Authority's case. Each statement should end with a declaration to the effect

"I make this Statement believing its contents to be true and in the knowledge that it will be placed before the Court"

You should also sign and date the statement.

At Court the Social Worker may be invited to give oral evidence to either adopt the written Statement and confirm the truth of its contents or, alternatively, if the matter is contested, you will be cross examined on your evidence by legal representatives of the other parties to the proceedings.

As you commence drafting your Statement, you should bear in mind that practice

directions have been issued by the President of the Family Division which dictate how the evidence is to be collated and presented to the Court. The main points for you to remember are as follows :

The Statement must show clearly the Court in which the matter is proceeding and the case number;
The children who are the subject to the application must be described by their full official names and dates of birth;
Each statement should commence with wording similar to this:

CASE NO : FPC/6700/01/03

Deponent : A Worker (1)

Dated : 11.01.01

File : 12.01.01

IN THE INNER LONDON AND CITY FAMILY PROCEEDINGS Court

IN THE MATTER OF THE CHILDREN ACT 1989

AND

IN THE MATTER OF TOMMY CHILD

___________________

FIRST STATEMENT OF

ANNIE WORKER

___________________

I, Annie Worker of Children's Social Care Services of (insert full address) make the following Statement :

I am a Social Worker employed by the London Borough of Lewisham at the Children's Social Care department based at (insert full address) . I hold the following qualifications . ....................................... I am authorised by the Applicants to make this Statement on their behalf. I make this statement form matters within my own direct knowledge and from information collated from the Social Work records.
..............

The Courts are most specific that statements must be in chronological form and in numbered paragraphs. This is not to say that you cannot use sub headings to describe certain categories and information, this is clearly desirable but each paragraph must be separately numbered. It is not helpful to include several separate paragraphs under one numbered paragraph.

Please avoid the temptation provided by Lotus Notes to "cut and paste" unamended pieces of information directly into the Statement. Please remember that in Lotus Notes you are recording in the present tense and when compiling your Court report, you are rendering your account in the past tense. Equally, any Court statement should be expressed in the first person.

In the First Statement to the Court, you should spend some time carefully addressing the headings set out in Section 1(3) of the Children Act which is known as the Welfare Checklist :

The Court is required to consider whether it is better to make an order rather than make no order at all. In so doing, the Court is required to consider the matters set out in the Welfare Checklist, these are;

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
his physical, emotional and educational needs;
the likely effect on him of any change in his circumstances;
his age, sex, background and any characteristics of his which the Court considers relevant;
any harm which he has suffered or is at risk of suffering;
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;
the range of powers available to the Court under this Act in the proceedings in question.

6. Significant Harm - Section 31 Children Act

S31 states that :

(2) A Court may only make a care order or supervision order if 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:
1. 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
2. the child's being beyond Parental control.

Before taking the decision to issue proceedings, there will have been debate in a number of professional settings which will identify the type of harm suffered by the children in question. It is important to specify in your statement which particular type of harm you are describing, for example - physical, emotional, developmental, etc. You will need to be specific about which types of harm have already occurred and which are likely to occur. Please note that as from the 31 January 2005 the definition of "harm" in the Children Act has been amended to include "impairment suffered by hearing or seeing the ill treatment of another". This will be relevant to the situation where children are witnesses to domestic violence.

7. Which Order, if any?

The Court process is a two stage process in which the Court adjudicates on whether it finds the test for Significant Harm proved (known as the Threshold Criteria) and then whether there is a need to make an Order.

Having laid out your evidence in respect of significant harm, the next task is to persuade the Court that it is appropriate for an Order to be made. The Court is obliged to consider the "No Order" principle. The Court must be satisfied that an Order is actually necessary. This part of the process is often referred to as the disposal stage of the case. At the conclusion of your Statement, it is good practice to explain what options you have considered by way of Order for the children and why you have chosen the particular Order sought in the application. The Court has various options

No Order;
An Interim Supervision Order;
An interim Residence Order;
An Interim Care Order.

Obviously an Order sought at a first hearing will be interim.

8. Who is Involved in the Proceedings?

Any Parent who has Parental Responsibility for the child automatically becomes a party to the proceedings. Any mother of a child automatically has Parental Responsibility. Any third party who has a Residence Order in respect of the

child must also be served with notice of the proceedings as they have Parental

Responsibility by virtue of a Residence Order.

If a child is born to Parents who are married, both automatically have Parental Responsibility for the child. Since December 2004, a unmarried father of a child who attends with the mother to register the child's birth and enters his name on the child's birth certificate automatically acquires Parental Responsibility for the child. An unmarried father who does not have Parental Responsibility is entitled to notice of the first hearing and subsequent hearings but cannot have sight of the Court documents unless he attends at Court and acquires party status. If he is made a party to the case, he can play a full part in the proceedings.

9. Identification and Instruction of Experts

In its endeavour to rigorously monitor the case management of children's cases, the Public Law Protocol dictates that all experts who are to be instructed in the case must be identified by the time of the Case Management Conference which can be fixed by the Court at any time between day 15 and day 16. Early discussion of the choice of experts is essential. These discussions will be most likely to take place at the initial Legal Planning Meeting and in any event will be discussed once proceedings are issued. It is necessary to obtain the permission of the Court to instruct experts to prepare reports. The Court has to give express permission for the disclosure of any Court documents to be shown to any expert. The Court also requires any expert to be formally instructed by a formal Letter of Instruction. This is a letter upon which the other parties to the proceedings often have the opportunity to comment and sometimes, if the instruction is a joint instruction between the parties, to which all parties contribute The Letter of Instruction clarifies the issues which the expert is required to address and also assists the Parents in understanding the ambit and purpose of the assessment in which they are participating.

10. The First Hearing

This hearing will be set for Day 6 by the Public Law Protocol. The Legal Department will notify you of the time and venue of the hearing and will ask that you attend in advance of the allocated hearing time so that discussions can take place with the other parties.

It will be necessary for you to bring your current Social Work file with you. You should familiarise yourself with all the details contained in the documents filed by you for the first hearing.

Clearly events will have moved on between Day 3 when your evidence was filed and the initial hearing on Day 6. The most commonly raised issues at a first hearing are as follows:

Section 20 Accommodation rather than an interim Order;
Placement with extended family members rather than an Interim Care Order;
Contact for the Parents and significant others;
Adjournment of the hearing with no Court Order on the basis of an express written agreement between the Social Worker and the client.

All these matters will have been discussed prior to your drafting your Statement. However, it is quite common for the Local Authority to deviate from its original course of action. Instructions will be taken from either the Social Worker or Team Manager at every stage.

11. Giving Evidence

It is helpful if you alert Legal Services to the fact that you are inexperienced in giving evidence at Court. When we are dealing with your case, we will advise you in advance as to what aspects of your evidence are most likely to become contentious at Court.

There is no magic in giving evidence but it is vital that you have a clear command of the information you are putting to the Court. You should at all times remain calm, despite difficult questions which may be put to you. It is perfectly permissible for you to ask for a question to be repeated or for you to state that you are unsure as to the matter being put to you. The Court is seeking to elicit your professional view. If you are clear about your professional view you should be confident in expressing it. The best form of preparation is to deal with all relevant matters in your written Statement so that the element of surprise in cross-examination can be minimised.

End