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Care Proceedings

If you have been accused of physically, emotionally or sexually abusing your child, or neglecting to care for them appropriately and Social Services are involved, we understand you will be worried and anxious about their future.

At James Murray Solicitors we are experienced in advising both mothers and fathers on how best to keep their children out of care.

We promise to offer you the best, professional and honest advice to make sure your interests are protected every step of the way.

Our team also frequently acts for extended family members, such as grandparents who often help with the care of children who cannot live with their parents.

The Local Authority can only intervene in the care of a child with the agreement of the parent or with an order of the Court (Emergency Protection Order/Care Order).

In accordance with s.17 of Children’s Act 1989, the Local Authority are under a duty to promote the upbringing of children in need by their families and where appropriate provide family support services to children in need and their families, provided this does not interfere with safeguarding the welfare of the child. As such, the Local Authority are under a duty to explore the provision of services and potential alternative carers prior to making an application to the Court if this is possible and will safeguard your child.

Assessment process

Where a child who may be in need is referred to a Local Authority, the Authority should decide within one working day whether to undertake an initial assessment.
If an initial assessment is to be carried out, this should be done within seven days of the initial referral and should consider the child’s developmental needs, the parents’ capacity to respond appropriately to those needs and the family and environmental factors.
The Local Authority will then need to decide whether:

  • The child is a “child in need” and
  • There is reasonable cause to suspect that the child is suffering (or is likely to suffer) harm.

If the above cannot be satisfied completely but from enquiries the child is assessed as being “in need”, then the Local Authority must evaluate what services are needed and prepare a plan with the child and the family.

A child is “in need” if

  • He/she is unlikely to achieve or maintain or have the opportunity of maintaining a reasonable standard of health or development without the provision for them of services by the Local Authority.
  • His/her health or development is likely to be significantly impaired, or further impaired, without the provision of such services.
  • He/she is disabled.

If both criteria are satisfied, then the Local Authority, within 48 hours, should decide what action should be taken to safeguard the child. This can include involving the police, who can authorise a Police Protection Order and also issuing proceedings for an Emergency Protection Order.

A Core Assessment has to be undertaken by the Local Authority, which should be concluded within 35 days of the initial assessment.

If at the conclusion of this assessment, emergency or legal action is to be taken by the Local Authority, then an application will be made to the Court.

If the welfare of the child would not be jeopardised, the Local Authority are required to send a ‘letter before proceedings‘ to the parents.

This normally invites them to a meeting to discuss Local Authority concerns and to attempt to agree a plan.

This, of course, is seeking to avoid the need for proceedings before the Court.

In most cases, the initial assessment considers whether to identify the child as being in need only.

A child is normally placed on the Child Protection Register following a Child Protection Conference under a specific category e.g. physical and emotional neglect.

This category must be reviewed regularly and you will be invited to the meetings where reviews take place.

Child Protection Conferences are for everyone concerned with the child in order to look at the child’s welfare.

Parents, health workers, GPs, school staff etc are all invited to the meetings to provide relevant information.

You are entitled to receive minutes (written notes) of these meetings and should always request them for your own information purposes. You are allowed to have a solicitor present during the meeting (however we cannot take an active role on your behalf).

If, with your agreement, the child is placed in alternative care whilst your parenting is assessed, there is sometimes a tendency for the Local Authority to let matters drift while the Authority prioritises more urgent cases of child protection over yours.

It is therefore essential that you regularly keep in contact with the allocated Social Worker and that assistance is obtained from to achieve the goals set for you to have your child returned home.

Contact

The Local Authority has a duty to promote contact between a child and their parents if they are in their care.
If you believe you are having insufficient contact with your child, then legal advice should be sought.

Such contact can often be supervised if your parenting skills are being assessed – this will give the Local Authority the opportunity to see you with your child.

If you are accused of a serious allegation of physical or sexual harm, the Local Authority may wish to supervise your contact to ensure there is no risk of further harm whilst the Family Courts determine whether the allegation is true.

Police Protection Order

The Police may take a child into police protection if a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm.

This can be for a period of up to 72 hours.

The Police may remove a child from your care and place him/her with extended family or in a Local Authority emergency placement.

Emergency Protection Order (EPO)

The Local Authority can apply to the Court for an EPO.

This is if there is reasonable cause to believe that a child is likely to suffer significant harm if they are not removed from where they are or if they do not remain where they are being accommodated.

An EPO can also be sought if the Local Authority is trying to make enquiries about a child and urgent access is required to the child and that access is being unreasonably denied.

An EPO can be granted for up to 8 days and it grants the Local Authority parental responsibility.

At the end of the EPO, the Local Authority must consider whether they will issue an application for a Care Order.

Care Proceedings

The Grounds
A Court can 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 harm or likelihood of harm is attributable to either:
  • The care given (or likely to be given) to the child if the Order is not made, is not what it would be reasonable to expect a parent to give, OR
  • The child is beyond parental control.

Grounds (1) and (2) must be satisfied in order for the Court to make an order and before doing so, they must consider a number of issues contained in statute.

This list is called the Welfare Checklist.

It includes the child’s physical, emotional and educational needs and how capable each party is of meeting those needs, the effect that any change will have on the child, whether the child is at risk of suffering harm and the ascertainable wishes and feelings of the child concerned. (Harm can be emotional, physical or general neglect.)

Effect of Care Orders

If a care order is granted then the Local Authority, by virtue of that order do obtain Parental Responsibility (see previous for definition)
They will then share this with you as a parent of the child.

You do not lose your Parental Responsibility but the Local Authority do have the power to decide to what extent you can exercise it.
This essentially means they can override any decisions you make concerning the interests of the child.

Most importantly they can decide where the child should live and how often they should have contact with you and other family members.
The Local Authority should do this only if they are satisfied that it is necessary to safeguard or promote the child’s welfare.

There are certain restrictions on the Local Authority and you will be advised should one of those grounds arise.

If you are at all concerned that the Local Authority may be acting outside the scope of their powers, we need you to contact this office straight away.
Care Orders discharge all other Private Law Orders, such as contact, residence etc.

Orders are made within the care proceedings for contact between the parent and the children.

It is for the Local Authority to convince the Court that it is not in the child’s interest for the parent to have contact with the child.

The Court will look both during the proceedings and at the end of the proceedings at the amount of contact that is being permitted by the Local Authority.

If the Court is not satisfied at the provisions for contact, then it may if it so wishes, refuse to make Orders sought by the Local Authority. Conditions may be attached to contact and only the Local Authority or the child’s representative can apply to prohibit contact.

If an Order is in place (whether interim or full) the Local Authority must have LAC (Looked After Child) reviews every 6 months to review how the child’s welfare is progressing.

You should attend all of these meetings, as it is your opportunity to voice any concerns you have.

Such reviews can also look at issues of contact and the child returning home.

Your child’s Guardian in the proceedings

Your child will be separately represented in these proceedings both by a specialist Social Worker known as a Guardian and by their own solicitor.

The Guardian is independent of social services and will speak to the child directly to ascertain their views.

It is also likely that they will wish to speak to you and other people with whom the child has regular contact. The purpose of a Guardian is to safeguard the best interests of the child and advise the Court on what is best for the child. As the Guardian is not a solicitor, they will instruct a solicitor to represent the child’s interests and convey the Guardian’s views to the Court.

The Proceedings

You will have been served with a set of papers and probably given a long statement from the Social Worker.
It is important that we consider this statement very carefully together with any letters that you receive from Social Services and any minutes of meetings, which you have attended in the past.

At the start of the proceedings the Court can make an Interim Care Order lasting sometimes up to two months.
After that, the Court considers the application every 28 days.

Unless there has been a change in circumstances it is unlikely that the Court will be willing or able to hear a contested hearing at each review.
If problems arise during the adjournment period – possibly because of the way which you consider the children in care are being treated or because there are problems about contact – then you should notify us immediately.

You have the right to notify the Court that we wish to be heard at the next interim hearing the Court are then unable to renew the Interim Order without hearing what we have to say first.

The Court

If your case is heard in the Family Proceedings Court then it will be heard by three family magistrates who are specially trained.
If your case is unusually difficult or complex, it may be transferred to the County Court to be heard by a Judge.

Any other parent, the Local Authority and the children will all be independently legally represented.

Often there is a conflict of interest between parents which means a solicitor cannot act for both parents e.g. if it is alleged that there is a history of domestic violence or drink or drug abuse or sexual abuse.

The Court will ask for help from experts such as psychiatrists and/or psychologists depending upon the facts of the case.

In any event the Local Authority will in most cases have to undertake a full assessment of your parenting abilities during the course of your case if they have not already done so.

You will be advised about this assessment by the solicitor dealing with your case as the case progresses.

From time to time there will be directions hearings where all parties will discuss what progress has been made and what further information or progress is needed before the case can be concluded.

It is likely that at one of these hearings, the Court will order that you file and serve a statement and it is most important that you co-operate with your solicitor so that they can prepare this statement for you.

To maximise the chances of having the child returned to your care, you must co-operate with your solicitor, the Court and Social Services at all times.

From time to time, the Court will appoint experts and it is equally important that you co-operate with them especially in keeping appointments, since they are usually busy people and if you fail to keep their appointments it is likely that they will not be able to make a further appointment to see you.

Duration of a Care Order

If a Care Order is made at the end of these proceedings, it will stay in force until the child reaches 18, or earlier if one of the following happens:-

  • A successful application is made for discharge of the Care Order
  • A successful application for a Special Guardianship Order or Residence Order is made. Sometimes this is brought successfully by grandparents or other family members.
  • An adoption Order is made.

Supervision Order

A Supervision Order is slightly different from a Care Order, although the same procedure is followed.

It differs from a Care Order in that the Local Authority does not gain parental responsibility for the child. Instead, the supervising officer has a duty to advise, assist and befriend the supervised child and take such steps that are reasonably necessary to give effect to the Order.

If there is a lack of co-operation, the supervisor can return the matter to Court.

If however they consider that their continued involvement is not necessary, then that officer can apply to the Court for a variation or discharge of the Order.

Supervision Orders initially last for one year but the supervisor can apply to the Court to have it extended for a period of up to three years beginning with the date upon which the Order was first made if they feel this is necessary.

If at the end of that time the Local Authority think that a Supervision Order is still necessary, they have to apply to the Court again and confirm that the grounds on which the Order was made are still in existence.

Whilst the Local Authority do not have Parental Responsibility under a Supervision Order, the supervisor may specify that the child lives at a particular place for a particular period of time and/or presents themselves to specified persons at specified times and places and participates in specified activities.

The child can only be made to comply with such a direction for a total of 90 days.

The supervisor cannot force the child to have any medical or psychiatric treatment – such directions can only be given by the Court.

The consent of all persons with Parental Responsibility is required before such an Order can be made.

Psychiatric and medical examination

As stated above the Court may wish either you or the child to submit to medical examination. No-one can force you to do this. If however you do not do so, it is open to the Court to decide that you are hiding something. In relation to a child who has sufficient understanding, they may if they so choose, refuse to co-operate with medical examinations. If the issue arises, this will be discussed with you further.

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