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Slide background

The pre-proceedings process

Child removal iStock 000007583512XSmall 146x219LexisPSL Local Government in partnership with Joy Hopkinson of London Borough of Lambeth Council explains the pre-proceeding process under the Public Law Outline (PLO) reforms to care proceedings.

Public law outline

The pre-proceedings process was introduced in 2008 as the part of the Public Law Outline (PLO) reforms to care proceedings. It has been revised by the Public Law Outline 2014 and the Children and Families Act 2014, and there is now a 26-week time limit for the completion of care and supervision proceedings This places an increased emphasis on pre-proceedings work.

In the View from the President’s Chambers: The Process of Reform: the revised PLO and the Local Authority’ [2013], The President of the Family Division, Sir James Munby, stated:

'Work done by the local authority in the period pre-proceedings—front loading—is vital for two quite different reasons. Often it can divert a case along a route which avoids the need for proceedings. When that is not possible, and proceedings have to be commenced, work done beforehand will pay rich dividends later on. A case presented in proper shape on Day 1 will proceed much more quickly and smoothly than a case which reaches the court in an unsatisfactory state.'

For the pre proceedings process to be effective, he recommended that:

  • local authority lawyers are involved at an early stage in advising and assisting their social work clients
  • a properly organised legal planning meeting is invaluable and is the key to achieving timely outcomes to care proceedings
  • the employment of a local authority case manager is vital (used in the Tri-borough Care Proceedings Pilot and others)

He further identified two key features that had a direct and crucial bearing on the future running of the care proceedings:

  • letter before proceedings being sent to the parents which will trigger free legal aid for them to be represented by solicitors, see Practice Note: Public funding in care proceedings
  • identification and assessment of family members as potential alternative placement for the children at an earlier stage:

Referral to Children Services

Upon receipt of a referral, a social worker (social worker) has 24 hours to determine what action is required (Working together to safeguard children (chapter 1). The outcome can be:

  • no further action
  • child[ren] needs immediate protection under police protection or under an emergency protection order (EPO) (ChA 1989, s 44, 46)
  • assessment (section 17 of the Children Act 1989 Act (ChA 1989)
  • investigate under ChA 1989, s 47 if there are safeguarding issues
  • accommodate under ChA 1989, s 20
  • any such other specialist assessments eg if child is disabled

Assessments

Unless the social worker decides that no further action is required, the local authority must then commence an in depth assessment, which must be completed within 45 working days of receipt of the referral. This type of assessment is still often referred to as a core assessment , although the 2015 Guidance states that there is no longer a requirement for a separate initial assessment and core assessment, as this will encourage a more fluid assessment process with continuity and consistency for the family. It is a matter for local authorities to determine their own local assessment processes and terminology within their local protocols.,

The social worker can undertake an assessment to determine if this is a child in need within the area. Defined by ChA 1989, s17(10) as a child who is

'unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority. (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled'

There is a general duty on every local authority to safeguard and promote the welfare of children in their area who may be in need and so far as possible to promote the upbringing of the child within their family. See Practice Note: Children in need—provision of services.

Significant harm

If a referral discloses an immediate risk of significant harm to the child, the police can place a child in police protection under ChA 1989, s 46 or the local authority can apply for an EPO under ChA 1989, s44. A strategy discussion must take place between the social work team, the police and other relevant professionals to discuss next steps and agrees actions and time scales. This will include the need to commence a ChA 1989, s 47. See Practice Note: Public children—principle of significant harm.

The local authority’s duty to investigate arises where it is informed that there is a child in their area under police protection or subject to the EPO or they have 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 local authority must act by making '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'.

If the local authority is denied access to the child or information as to the child’s whereabouts, the local authority shall apply to the court for an EPO or such other order unless it is satisfied that the child’s welfare can be safeguarded without such action. See Practice Notes: Emergency prohibited steps and child arrangements orders and Public children—emergency protection orders.

The social worker will speak to the child[ren] and family members and any professionals or agencies known to the family. If the referral relates to a criminal offence, the social worker will be alert to achieving best evidence (ABE) procedures in respect of speaking to the child about the incident(s) and will liaise with the police.

At the conclusion of the ChA 1989, s 47 investigation, the local authority can decide

  • no further action, or
  • provide services as a child in need under ChA 1989, s17
  • refer for a legal planning meeting for legal advice (see below)
  • refer the family for a child protection conference. The initial child protection conference must be convened within 15 working days of the decision to commence the ChA 1989, s 47 investigation. See Practice Note: Child protection conferences

Legal planning meetings

Legal planning meetings are held when the social work client requires advice as to whether the ‘threshold criteria’ for a ChA 1989, s 31 have been met.

The social worker, team manager and lawyer will consider the care plan, risks to the child and harm suffered, assessments, gaps in evidence, parents capacity to engage in litigation and the family and friends network etc and decide:

  • further work required
  • threshold criteria is not met
  • threshold is met and care proceedings must be filed
  • threshold is met but there are interim measures in place to safeguard the child[ren] while parents are given one last opportunity to engage under pre-proceedings PLO

If a decision is made to issue care proceedings, then an immediate issue letter should be sent to the parents by the social worker.

If a decision is made to manage the case under the pre-proceedings, then a letter before proceedings should be sent to the parents by the social worker. A list of local solicitors should be attached to the letters.

The starting date for pre-proceedings is the date of the decision at legal planning/gateway.

 

Management of case under Pre-proceedings process

Letter before Proceedings

The social worker is responsible for completing the letter before proceedings using the templates in Annex B of the statutory guidance. Court orders and pre-proceedings—March 2015.

The letter before proceedings must be sent to a parent(s) and any other person with parental responsibility for the child inviting them to attend a pre-proceedings meeting with the social worker. The letter must be:

  • a summary in simple language of the local authority’s concerns
  • a summary of what support has already been provided to the parents
  • what parents need to do and what support will be provided for them, to avoid proceedings, including time scales
  • information on how to obtain legal advice and advocacy and make clear how important it is for the parent to seek legal representation

The parents must take this letter to solicitors as they will be entitled to non-means-tested legal aid representation and advice for the pre-proceedings process, see Practice Note: Public funding in care proceedings. Good practice provides that a parent should have up to ten working days’ notice of a pre-proceedings meeting.

It is also advisable to attach with the letter a separate pre-proceedings plan setting out clear expectations of the parents and of the local authority so that the parents’ solicitors can advise them on the plan ahead of the pre-proceedings meeting.

Preparation for the pre-proceedings meeting

To ensure that the pre-proceedings meeting is effective the local authority lawyer should prepare and send the following information to the parents solicitors for them to consider and advise their client ahead of the pre-proceedings meeting:

  • experts CVs, time scales for assessments and draft letters of instructions
  • evidence the local authority is relying on, any social worker documents, police reports etc
  • details of support services/agencies that the parents need to engage with as part of the pre-proceedings process

Pre-proceedings meeting

The pre-proceedings meeting is chaired by a team manager and attended by:

  • the parents(s)
  • any person with parental responsibility
  • their solicitor
  • social worker

The LA lawyer is not required to attend but will often do so if the parents attend with their own solicitors. If the social worker requires legal advice during the PPM, the LA lawyer will be provide such advice away from the PPM.

A child may attend a PPM if they are of an age and have capacity to contribute to the pre-proceedings process. They are not entitled to free legal advice so the LA needs to identify support or Advocate for that child.

During the PPM provides that during the meeting, the attendees should:

  • agree and sign a pre-proceedings/working together plan
  • specify what assessments and services the parents need to engage in and time scales
  • identify family members’ details for a FGC or family meeting
  • set down dates for review and conclusion of the PLO process
  • clearly outline what steps the local authority will take at the end of the process depending on the progress or otherwise of the plan
  • set out what support the local authority will provide to the family

There is a helpful checklist for the agenda for a pre-planning meeting in Best Practice Guide—August 2009.

Review of pre-proceedings

To minimise drift under pre-proceedings, there should be a:

  • midway review pre-planning meeting—six to eight weeks to consider the progress of the plan and outcome of assessments
  • a final pre-planning meeting—12–16 weeks
  • review legal planning meetings between the local authority lawyer and client to discuss the impact of assessments on the threshold criteria, parallel planning, any developments influencing the care plan

These time scales are subject to the needs of the child and the progress by the parents and therefore pre-proceedings can be concluded sooner.

Under the pre-proceedings process, the local authority must actively consider family and friends because if a child[ren] cannot remain in the care of this parents, the local authority has a duty to consider in the first instance placement with other family members and friends.

Local authorities will use family meetings or family group conferences (FGC) to include family members in the decision making and to identify alternative family carers and support. FGC’s are a voluntary process for family members to attend a meeting and agree a family plan for supporting the parent(s) and child[ren]. The meeting is normally organised by a FGC coordinator who is independent of the local authority.

Where preliminary assessments of family members are positive, the local authority will normally complete a special guardianship assessment or a connected persons/Kinship assessment, if the child is looked after.

Conclusion of the pre-proceedings process

The outcome will either be:

  • the parent[s] are meeting the needs of their child[ren]. The PLO is stepped down, or
  • the parents have not made meaningful changes so the local authority will be issuing care proceedings. The PLO process should have narrowed down the issues to be litigated on during the care proceedings
  • if positive assessment of family members and the parents do not oppose their child[ren] being placed with that family member; they can then make their own application for a special guardianship order or a child arrangement order for residence. See Practice Notes: Special guardianship and Procedure—special guardianship applications

 

Commencing care proceedings

Once the decision has been made to commence care proceeding, a Letter of issue must be sent to the parents and their solicitors. It informs them that the local authority is applying to court for a care or supervision order. It should follow the template in Annex B of the guidance. See Practice notes: Public children—threshold criteria and How to draft a local authority threshold document in care proceedings.

References:

Court orders and pre-proceedings—for local authorities, Annex B

Family Procedure Rules 2010—Practice Direction 12A

Preparation for issuing care proceedings

Guidance on how applications for care proceedings should be conducted is set out in Practice Direction 12A of the Family Procedure Rules 2010.

In preparation for issuing care proceedings the local authority lawyer must consider the pre-proceedings checklist with the social work client and ensure the care plan is supported by:

  • robust and up to date assessments
  • family members have been identified and assessed. If not, the are time scales for completing this work without delay
  • statements are evidence based with comprehensive analysis
  • chronology has key dates/incidents from past two years unless relying upon earlier incidents in evidence
  • a genogram
  • all relevant social work reports, records and decisions that local authority is relying on are available

The social worker evidence template was introduced in 2014 as a standardised format for all social worker statements to be used nationally. It includes sections for the care plan and chronology so there is no need for a separate initial care plans or chronology. The social worker evidence template has not been enforced as yet nationally and there are regional variations in its use.

Issuing an application for care order

On day one, the local authority lawyer must file with their application form, a social statement, genogram, chronology, and care plan (if using social worker evidence template do not need separate care plan and chronology) and index of the checklist documents and current assessment of the child. The local authority does not need to serve any documentation that is more than two years old unless it is relying upon it in support of their application.

On day two, the local authority lawyer must serve on the parties the documents above and the copies of the actual checklist documents that the local authority is relying upon in support of its application and notice of the hearing.

This article – written in partnership with Joy Hopkinson of London Borough of Lambeth Council – was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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Court rejects challenges to Heathrow expansion

Charles Streeten, barrister at Francis Taylor Building, explains how the court came to reject the claims for judicial review of the Heathrow runway expansion in R (on the application of Spurrier) v Secretary of State for Transport and other cases.
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October 04, 2019

Exploring the limits of public authority’s liability for children

Duncan Fairgrieve and Jim Duffy, barristers at 1 Crown Office Row, examine the Supreme Court’s decision in Poole Borough Council v GN and another that the respondent local authority did not owe a common law duty of care to exercise its functions under the Children Act 1989 to protect the appellants, who were children of a family which it had housed, from harm at the hands of anti-social neighbours.
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October 04, 2019

Abandoning a procurement exercise - when can a contracting authority extinguish a challenge?

Lucy James looks at the legal effect of a decision to abandon a procurement exercise and whether it extinguishes an accrued cause of action a bidder may have against a contracting authority for breaches of the Public Contracts Regulations 2015 SI 2015/102 (PCR 2015).
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August 23, 2019

‘Funding crisis’ - a detailed look at the funding shortage in UK schools

According to campaigners, more than 200 schools in England are cutting their school weeks short due to funding shortages. This raises questions over legal ramifications and the responsibility of the government. Jean Tsang, associate at Bates Wells and governor of a maintained primary school, addresses these questions and looks at the worrying effects of this ‘funding crisis’ on the ‘most vulnerable children’ in the educational system.
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August 16, 2019

Judicial review challenge over closure of children’s centres defeated by local authority

The case R (on the application of L, an infant (by his mother and litigation friend)) v Buckinghamshire County Council represents the first time when the High Court considered in detail the meaning of the ‘sufficiency duty’ in section 5A of the Childcare Act 2006 (ChA 2006) in the context of whether a council’s consultation on the closure of a number of children’s centres was unlawful or not. James Goudie QC examines the background to and the practical implications of the judgment.
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August 09, 2019

How does a local authority establish a market?

The LexisPSL team outline the powers available to local authorities looking to establish a new market.
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August 02, 2019

Forced academisation of schools - is resistance futile?

What are the circumstances which lead to a school being forced to become an academy, and is there anything that can be done to stop it happening? Katie Michelon provides an overview of the forced academisation process, and explains the options available to schools, parents and local authorities when faced with the possibility of an Academy Order.
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June 13, 2019

Home or away?

Katherine Illsley outlines how a local authority should approach the situation where a parent to be assessed for the purposes of public children care lives in another jurisdiction.
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June 07, 2019

Tenant Fees Act 2019 - government guidance

The government recently published guidance on the Tenant Fees Act 2019 (TFA 2019). Robin Stewart and David Smith of Anthony Gold Solicitors look at some of the key questions relating to the guidance, including enforcement, penalties and some controversial aspects such as guidance pertaining to payment of damages.
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June 07, 2019

How should the courts approach cases with an ‘open’ pool of possible perpetrators?

Chris Stevenson, barrister at Fourteen, examines the Court of Appeal’s decision in Re B (children: uncertain perpetrator) to allow a father’s appeal against a Family Court judge’s finding that he was within a pool of possible perpetrators responsible for sexually transmitting gonorrhoea to three of his children (registration required).
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May 24, 2019

Court of Appeal finds permissive housing policies can restrict development elsewhere

In Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669, the Court of Appeal dismissed an appeal by developer Gladman against the decision of the High Court to quash planning permission granted on appeal for a residential development on a site not allocated for development, not on previously developed land, and outside the existing built-up area.
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May 24, 2019

Safety first?

Daljit Kaur looks at the implications for disability discrimination of a case concerning a nursery-age child prevented from accessing provision over 15 hours.
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May 17, 2019

The changing landscape of local authority Trading Standards prosecutions?

Richard Heller considers the potential impact of Qualter and others v Crown Court at Preston [2019] EWHC 906 (Admin) could have on the way regional Trading Standards services investigate and prosecute criminal offences (registration required).
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May 17, 2019

Wish they weren't here?

Can a parent with parental responsibility object to their child, who is subject to an interim care order, being taken on holiday by their foster parents?
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May 10, 2019

Exploring the new guidance on greater protections from rogue landlords

Jason Hobday, associate at Womble Bond Dickinson, discusses the implications of recent government guidance documents which intend to enforce greater protections from rogue landlords (registration required).
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May 09, 2019

Court finds judge in Uber licensing case was not biased

Philip Kolvin QC examines the High Court’s decision in R (United Cabbies Group) v Westminster Magistrates’ Court to dismiss the claimant’s application for judicial review of a district judge’s grant of an operator’s licence for London private hire vehicles to the third interested party, Uber.
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May 03, 2019

End of the road?

Morayo Fagborun Bennett looks at the Court of Appeal's decision on waiving offers of alternative accommodation and the lawfulness of an earlier review decision on a subsequent homelessness appplication in Godson v London Borough of Enfield [2019] EWCA Civ 486.
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May 03, 2019

Court rejects implied duty to report change of address for council tax purposes (R v D)

Samuel Genen, solicitor at Steel & Shamash, comments on the case of R v D [2019] EWCA Crim 209 where the Court of Appeal ruled that a failure to notify the local council of a change of address for the purpose of council tax did not constitute a criminal offence under the Fraud Act 2006 (FrA 2006). (Registration required)
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March 22, 2019

Is it in the best interests of a child to give evidence in a foreign trial?

Katherine Duncan explains how the court, in Re X, carried out a balancing exercise in determining whether a child, who was ward of the court, should be permitted to travel out of the jurisdiction to give evidence at a foreign criminal trial.
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March 15, 2019

High Court’s inherent jurisdiction for the protection of vulnerable adults

The case of Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) highlights the wide and largely unfettered nature of the power to grant injunctive relief under the High Court’s inherent jurisdiction for the protection of vulnerable adults and the difficulty surrounding the issue of how the balance should be struck between protection of a person on grounds of vulnerability and respect for their autonomy, writes Bethan Harris.