Ian WalkerCare proceedings

These are where the social services department of the local authority has concerns about the welfare and or safety of the child. There will be evidence that the child has suffered or is likely to suffer significant harm because the parenting that they are/have received may not be good enough. The harm can be to another child in the family. For example if one child has been sexually abused – then social services will be concerned that if nothing changes other children within the household are also likely to suffer sexual abuse.

We specialise in this type of law. We have a very strong team of lawyers that regularly represent parents and children and grandparents in court in care proceedings. Sometimes we also represent Devon County Council if their legal department’s overstretched and needs to ask another solicitor to act on their behalf.

We have one of the strongest and most experienced teams of solicitors who specialise in care proceedings in the south-west.

There is a lot of jargon that is thrown around and we will try and explain some of it here.

About care proceedings

‘Care proceedings’ is the phrase used to describe the legal process by which a local authority asks the court to allow it to place a child under its care.

Children are only ‘looked after’ by a local authority when the court is satisfied that a child is suffering, or are likely to suffer, significant harm from the way they are being looked after by their parents or carers, or that a child is beyond a parent or carer’s control. This test that the court must be satisfied is met is called the threshold criteria. If there is not enough evidence to prove the threshold criteria – the case ends.

As shorthand – we refer to care proceedings. This can include applications both for supervision orders and for care orders. See below.

What is an interim care order?

This is usually the first step within care proceedings where social workers have become very concerned about a child. The local authority may ask the court to make an interim care order while it investigates matters and considers what longer term plans should be made for the child.

An interim care order allows the local authority to share parental responsibility with the parents.

Normally, an interim care order places the child in the care of the local authority on a temporary basis while the situation is assessed. In other cases, the child may continue to live with their parents or carers under conditions.

The local authority must produce a care plan for a child under an interim care order. This sets out what it thinks should happen, such as where the child will live, how they are going to keep in touch with their family, where they will go to school, if there any medical concerns or treatment, how they will pursue hobbies and pastimes and for how long it proposes the child will be in care.

Before the Judge makes an interim care order the judge will want to read very carefully the interim care plan. The judge may ask social services to make changes. The judge may also make separate orders about contact arrangements (though not normally).

The court has to be satisfied that the threshold criteria has been proved to the civil standard of proof (a balance of probabilities – is something more likely than not to have happened) (not the criminal standard of proof – which is beyond reasonable doubt) before a care order is made. When the case is at the interim care order stage – the court only need to be satisfied that there is evidence to show that there is reasonable cause to believe that the threshold criteria will be proven at a final hearing. This is therefore a lower test than at the final hearing.

The making of an interim care order will not prevent a child from being returned home at the end of the case.

The making of an interim care order is intended to be a neutral step – to stabilise the child’s situation and to ensure that they are safe – whilst investigations take place to decide what long-term plan will be in the child’s best interests.

What is a final care order?

This is an order by which the court approves the local authority’s care plan for the child, if it believes it is in the child’s best interests to do so.

The plan can involve the child living at home, being placed with other members of the extended family, or living in foster care or in a children’s home. Care orders last until the child is 18 or until the court makes a further order.

If the child is placed with another family member – this may be through a special guardianship order. We have more about special guardianship orders on another page.

What is important is that anyone who is a potential long-term carer for a child makes it clear that they are willing to be assessed by the local authority at the beginning of the case. If they only come forward at the end of the case they may well be discounted.

What is a supervision order?

A supervision order can be made where the local authority has concerns about the standard of care a child is receiving from his or her parents or carers, but is not so concerned as to warrant asking the court to make a care order.

Under a supervision order, the child remains with his or her parents or carers and social workers have a duty to advise, befriend and assist the child. The local authority will produce a care plan and a supervision order can impose conditions on the child’s care givers, for example not to abuse drugs. If the conditions aren’t followed, the local authority may seek to return the matter to court to ask for a care order to be made instead.

In care proceedings the court can leave a child with their parents under an interim supervision order. That there is an order gives social services more oversight of the care of the child as the case progresses.

If a child has been made subject of an interim care order but is to be returned home to a parent at the end of the case – then this is often with there being a supervision order.

What is an emergency protection order?

A local authority can obtain an emergency protection order at very short notice when children are at immediate risk and urgently need somewhere safe to stay for a few nights. These applications are treated very seriously by the court, which will only make the order if it believes the children will suffer harm if they stay where they are currently living (or if they do not stay there), or that they are suffering harm, and that social workers need access to the children urgently to protect them.

The police also have powers to take a child into police protection for up to 72 hours where they believe that child would otherwise be likely to suffer significant harm.

If the local authority applies for and obtains an emergency protection order – it will normally apply for a care order shortly afterwards and the long-term arrangements for the child will be decided within the care proceedings.

About adoption proceedings

Many children return home when they are no longer considered to be at risk of harm. However, if, after investigations and consideration, the local authority considers that it would not be in the child’s best interests to return to live with his or her parents or carers, it may seek to arrange for the child to be adopted.

The courts are concerned with making long-term plans child. For the child to be subject of care proceedings means that the child will have had something quite bad happen to them or around them.

The law is clear that first of all the local authority must demonstrate that aim child cannot be returned to the care of their parents. If this really is not possible – then all viable options elsewhere within the family will be looked at. Adoption is therefore only a last resort. This said, where the case concerns young children – they are more likely to end up subject to adoption proceedings than older children. Where it is clear that older children cannot be returned to their family it is unusual for the child to be subject to adoption proceedings – not least because it may well be virtually impossible to find adopters. Most potential adopters are looking to adopt young children.

With very little children – if they cannot be returned their family and there is not evidence that a parent can make rapid changes – then it is unrealistic to think that little children will be placed in long term foster care. This is why it is important that parents and other family members are looking to recognise concerns and make changes to ensure that adoption can be avoided.

The first stage of this process is to apply for a placement for adoption order. After that, the court will consider whether a final adoption order should be made.

What is a placement for adoption order?

If the child’s parents or carers consent to the child being adopted, this is known as placement by consent. However, if the parents or carers do not consent the court may agree to proceed without their consent and make a placement order if it considers placement to be in the child’s best interests.

The placement order allows the local authority to place the child with potential adopters and there is then a window of time within which an application for an adoption order can be made – and the parents would not be able to challenge the adoption taking place.

What is an adoption order?

Once a child has been placed for adoption and matched to a suitable family, the court will then consider an adoption order. This transfers parental responsibility to the adoptive parents and undoes the legal ties with the child’s birth family. An adoption order is only made by a court following extensive enquiries. The court will only make the order if it is in the best interest of the child.

It is unusual for a parent or grandparent to be allowed to maintain regular contact or indeed any contact with the child who is adopted. The best is often only letterbox contact.

The views of adoptive parents are taken into account when considering postadoption contact. Most are not supportive.

What happens at court?

When there is an important court hearing about your child, the judge will listen to everyone involved in the case before it decides what to do. The court will have help to make its decisions from a specialist independent social worker whose role is to assess the whole situation and recommend what he or she thinks is best for your child. Sometimes this person is called a Cafcass officer or a children’s guardian.

It is the guardian’s job to appoint a solicitor to represent the child, advise the court on what work needs to be done before it can make a decision about the child’s future, check the care plan and write a report for the court on what they think is best for the child. To do this, he or she will spend time with the child and the parents or carers, and talk to other people who know your family. He or she will also attend meetings about the child.

The court tries to ensure final arrangements are made for children within six months. During this time, there will be people trying to find out why the child may be at risk and what could be done to keep them safe, which may involve working with parents or carers in some way. Parents or carers may be assessed, as may wider family members or friends in case the child is not able to return home. The court bases its decisions on what is in the best interests of the child and is guided by the recommendations of the guardian.

The court will take special care to ensure that parents understand what is going on in court. This can mean the appointment of interpreters or specialists in communication.

The court case will often involve assessments of the parent and the child to understand the child’s needs and the parent’s capabilities.

If there are important factual matters which are in dispute – for example if it is alleged that a child has suffered a non-accidental injury – but it is disputed that injuries were non-accidental or it is disputed who calls them – then the first stage in the case will be to have a fact-finding hearing – where the court will determine who did what.

Once there are sufficient facts which are agreed or decided – the case will move into the assessment phase – where the court is wanting to see evidence gathered to establish what will be in the long-term best interests of the child.

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