The Pre-Proceedings Stage

What happens before the LA decide to apply for a care order?

This is known as the ‘pre-proceedings’ stage.  The aim is to try and intervene and help families before getting to the stage of making an application to the court.

See Chapter 2 of the Guidance from the Department of Education.

The LA should aim to work in partnership with the family, to assess their needs and identify what support could be offered to them. Family Group Conferences are recommended as a good way to get wider family on board and to investigate what support they can offer.  If matters are not improving, then a ‘legal planning meeting’ should take place to consider whether the threshold criteria have now been met and care proceedings should be issued.

You may also be interested in our post on investigations and referrals.

 

What if the situation is urgent?

The Pre-Proceedings stage is only appropriate if the situation is NOT so serious as to require immediate action. If the LA decide that a situation is urgent, they must consider applying for an Emergency Protection Order.

 

What if the child hasn’t yet been born?

If the baby isn’t born yet, care proceedings can’t start. If the LA are worried about someone who is pregnant and they want to consider starting proceedings after birth, the pre-proceedings stage is a useful framework for trying to get help and support in place to keep the family together. It also allows for the parents to get legal advice relating to the pre-birth assessments, and the proposals for after the baby is born.

 

Letter before proceedings

If it is decided that the situation is not so serious as to require immediate removal of a child, the LA will then issue a ‘letter before proceedings’ to the parents. If the LA are concerned that the parents may not fully understand the concerns, they must take this into account and consider what services are available to the parents, such as an advocate.

The letter should contain:

  • A summary of what the LA is worried about, set out in simple language;
  • A summary of what support has already been given;
  • What parents need to do, how they will be helped to do it and how quickly they have to get it done; and
  • Information on how to obtain legal advice and advocacy.

It is vital that parents engage with the process and get some legal advice.

If parents don’t engage, the process will simply carry on without them and it may end up in court without the parents having had much input. This will obviously make it much more difficult for them to argue that their child should remain in their care as the court will worry that the parents just don’t understand the problems and aren’t taking them seriously.

 

The Pre-Proceedings Meeting

The letter will also invite the parents and anyone else who has parental responsibility for the child to a meeting to look at the current concerns about the child’s welfare. At the meeting, the aim is to agree a revised plan for the child, which should be set out in writing and which will set out what needs to be done to avoid going to court.  It should be very clear what is expected of everyone and the timescales for carrying out the plan. This plan needs to be reviewed within six weeks to see if things are getting better or if the court now needs to be involved.

 

Legal help

Once parents get the pre-proceedings letter they are entitled to free legal help which will include having a solicitor come to meetings with the LA. The LA should include with the pre-proceedings letter a list of all specialist family law solicitors in the local area, but the parents are free to select who ever they like.

 

Letter of issue

Once the LA decide that progress isn’t being made, or isn’t being made quickly enough to meet the child’s needs, they will have to make an application to the court. They will then send the parents a letter to say they are going to do this, and advising the parents to seek urgent legal advice. The parents will be able to obtain free legal advice and representation throughout the court proceedings.

Again, It is vital that parents don’t delay going to see their solicitors; the lawyers can’t act without instructions.

If for whatever reason a parent does not want to involve a lawyer, it is still very important to engage and turn up to meetings and court hearings, otherwise decisions will be made in your absence and without your input.

See our post What if I don’t have a lawyer? for alternatives to legal help.

 

How effective is the pre-proceedings process?

There has been research from the University of Bristol and the University of East Anglia in 2013 into how this operates, and its effect on diverting cases away from court.

The key points to come from the research were:

  • Use of the pre-proceedings process varies between local authorities. Those in the study used it in almost all cases where there was time to do so, around half of all cases where care proceedings were started.
  • A third of pre-proceedings cases involved pre-birth assessments. Meetings were used to agree assessments, services and /or alternative care.
  • Use of the process was supported by social workers and their managers who saw it as a more respectful way to work with families at risk of care proceedings.
  • Parents felt supported by having their lawyer at the pre-proceedings meeting; for some this helped them to engage with children’s services and improve care.
  • The pre-proceedings process did succeed in diverting cases from court. Based on the file sample, about a quarter of cases did not enter care proceedings; in a third of these children were protected by kin care or foster care; and in two-thirds by improvements in care at home.
  • Care proceedings were not shorter where the pre-proceedings process had been used. Courts did not appear to take particular account of this work.
  • The pre-proceedings process delayed decisions for children who entered care proceedings. Court applications were delayed by attempts to use the process and sometimes by failure to recognise family care was not improving.

 

 

19 thoughts on “The Pre-Proceedings Stage

  1. sam

    I hope I have sorted out my posting glitches.
    I am aware that parents are being told to leave from their homes and placed on supervised contact without court orders for months at a time . The resident parent is then threatened with care proceedings if they have anything to do with the parent that has been sent away.
    What on earth can these parents do please?

    Reply
  2. Sarah Phillimore

    They should say that they do not accept the LA placing limitiations on how they excercise their parental responsiblity. they do not accept these limitiations and hence they are not lawful. The LA can only lawfully interfer with a family if it has a care or supervision order.

    But beware. If parents are denying or minimising concerns about their parenting or other behaviour that a court is likely to take seriously, then it is likely a care order would be made and the LA would formally share parental responsibility. So parents have to understand the likely consequences of a refusal to engage with the LA.

    they may well be right and the LA concerns may be misplaced. But in many cases, they are not and parents cases slide further and further out of their hands, not due to a failure necessarily by the LA to follow due process, but due to a head in the sand attitude from the parents about the problems that have brought them here.

    However I don’t see it helps anyone to have these kind of serious matters limping on under a section 20 ‘agreement’ which the parents either don’t understand or don’t accept. Get it in front of a judge and get the case properly managed to its conclusion. Just be prepared for a conclusion that you may not like, if you are not able to engage with real concerns.

    this is a general ‘you’ not a ‘you’ directed at Sam in particular.

    Reply
  3. sam

    Thank you Sarah.
    Just to follow on many times parents try desperately to engage with the local authority , but the social workers/managers will not give them a chance or even explain what they need to do to be good enough parents.

    I do find the system ever so lax, compared to criminal proceedings under PACE yet in many ways the stakes are that much higher. I do wonder if something similar to PACE is needed. Actually I would go further and split child protection from child support.You require a different type of person to do each role, and parents may have a little more trust in the system.

    The cases I am talking about there is no section 20 parents are simply told to leave.

    Reply
    1. Sarah Phillimore Post author

      I don’t doubt that there can be failures by professionals to communicate properly with parents. But equally parents need to listen and engage. I have many examples now of seeing parents on the Facebook groups for e.g. tell me their case was ‘only’ about this or ‘only’ about that – you dig a little deeper and it is quite quickly apparent that their case was about many, many more concerning issues that they just don’t seem to want to admit. Maybe this is a failure of the social workers to properly communicate. Maybe its due to shame, embarrassment, fear. I don’t know.

      but if you feel that you don’t understand why Children’s Services are raising issues about your care of your children ask them to explain. If they won’t explain, ask them to put it in writing. If they won’t put it in writing, make a formal complaint. You absolutely must understand at the earliest possible stage exactly what people are worried about. Otherwise, nothing will happen to change anything and parents risk being written off as unable to make any changes within their children’s timescales.

      Reply
  4. Pingback: My child hasn’t been born yet but I have been referred to children’s services | Child Protection Resource

  5. Sam

    The letter I received before proceedings did not outline any help they had offered because, they had not offered any, nor did it outline anything I had to do to stop proceedings. There was also no pre proceedings meeting. It was not an emergency as the children had already been taken from me some months before. Should my solicitor or the judge picked up on this?
    Also is disclosure of multi agency meetings allowed or do all agencies involved have to be approached ? Does there have to be a court order to get such disclosure?
    Sorry lots of questions today but they may help others as well.

    Reply
    1. Sarah Phillimore Post author

      Failure to comply with what is set out in the pre-proceedings stage is regrettable but it won’t of itself render subsequent proceedings unlawful. That is because the court has to focus on the welfare of the child, not on compliance with procedure over and above the child’s welfare.

      But if no help was offered before coming to court that is a fairly strong argument during care proceedings that actions which interfere with family life are less likely to be considered proportionate.

      If the findings of any meeting are relied upon by the LA to prove significant harm or a risk of this then minutes of the meeting will have to be disclosed. If not, they can’t rely on them. Your lawyer and the Judge should pick up on that pretty quickly.

      Reply
  6. angelo granda

    If a respondent’s lawyer and the Judge pick up on it,can the court proceedings still be considered lawful on the grounds that it has to ‘focus’on the welfare of the child?
    Is it a case of ‘Anything Goes’ or is there a line drawn somewhere?

    Reply
    1. Sarah Phillimore Post author

      The line is drawn quite clearly. Children need to be protected from significant harm. the State is under an obligation to take action to protect children. The State’s actions must be lawful – which in essence means they must be proportionate. But no court is going to allow procedural law to stand in the way of protecting children. Just because the wrong box gets ticked on a form doesn’t change what is happening for the child on the ground.

      however, procedural formalities are important because they act as a framework to ensure that the State is acting proportionately. Failure to comply with procedures may make it more likely that the State have acted lawfully. But it is not automatic that procedural failure = unlawful action or that unlawful action = child not at risk.

      Reply
  7. Sam

    Thanks again Sarah . Sorry to repeat this but it is important at the moment. I have been told that there cannot be disclosure of joint agency meetings /communication and any disclosure whatsoever has to be ordered by the court. Looking backwards it doesn’t seem right but is is right ? i am rather confused.

    Reply
    1. Sarah Phillimore Post author

      It may not be possible for other agencies to agree disclosure in the absence of a court order if for e.g. that meeting relates to an on going police investigation which will be compromised by disclosure.

      But the LA cannot rely to prove their case on decisions made at meetings if they are not going to provide the minutes of those meetings. Otherwise you don’t have an opportunity to examine the case against you. This is simply unfair and a breach of Article 6 of the ECHR. If there is information about third parties that needs to be kept confidential, this can be removed. If the police object to disclosure, then it will have to go to the court who can make an order.

      Reply
  8. angelo granda

    I thank you also,Sarah,for your view and will be interested in all views on this subject.

    If I may I would like us all to focus on Public Trust and confidence in the system and how we can restore it.

    QUOTE: Failure to comply with what is set out in the pre-proceedings stage is regrettable but it won’t of itself render subsequent proceedings unlawful. That is because the court has to focus on the welfare of the child, not on compliance with procedure over and above the child’s welfare:UNQUOTE

    I think the average citizen will think the above opinion enters into the realms of IRRATIONALITY.

    The Public (Children Act) Statute put into force by Public Act of Parliament, having ‘focussed on the welfare of children’ in great detail, has made it law that it is always in the welfare interests of children for the authorities to afford children( and their families) a number of procedural safeguards to protect them from abuse from those authorities.The procedures and safeguards are clear within the Working Together frameworks as they are throughout the Act.

    How can we have much trust in a court system which can decide that when the authorities do not keep to the legal guidelines, it is not unlawful if they deem it ‘in the welfare interests of children’?
    Those welfare interests have been defined by the law but the court can decide it can override them on the strength of its own ideas on child welfare..

    Of course,I recognise that the average lawyer will have a different outlook but can you not see why the average Joe will consider such opinions irrational?

    The Convention on Human Rights says that a KEY TEST of all convention rights is that procedural safeguards are in place and observed so as to avoid the ‘possibility’ of abuse ‘ but you are saying that a court can decide they may be dispensed with in some circumstances.

    This leaves our rights open to the possibility of abuse, does it not?

    Reasonable or irrational that is the question?

    What we do know is that ordinary courts do not jump over procedural safeguards so conveniently for the authorities.Citizens must have their rights protected to restore Public trust.
    At the very least they should have the automatic right of appeal to the High Court.

    What do others think?

    Reply
    1. Sarah Phillimore Post author

      QUOTE: Failure to comply with what is set out in the pre-proceedings stage is regrettable but it won’t of itself render subsequent proceedings unlawful. That is because the court has to focus on the welfare of the child, not on compliance with procedure over and above the child’s welfare:UNQUOTE

      I think the average citizen will think the above opinion enters into the realms of IRRATIONALITY.

      Then the average citizen needs to stop and think a bit harder.

      Real life example: mother with learning disabilities, violent boyfriend with drug habit, house in squalor. Baby is removed at birth unlawfully because LA do not apply for care order, mother can’t consent to section 20 accommodation because she lacks capacity and LA don’t ask police to exercise their powers under section 46 of CA.

      So, no lawful basis for removal. Is baby returned? No. judge is angry with LA for failing to get legal basis for removal but baby stays removed and stays in foster care because to return a vulnerable new born to that kind of situation is risking serious physical injury or death to that child.

      Reply
  9. angelo granda

    Diabolical! The Public would be appalled.

    Fact:No lawful basis for removal- To remove a baby at birth from the bosom of mother is inhumane. Baby was not only exposed to serious danger of significant harm by the CS but will have suffered both actual emotional and physiological harm, will have been put at risk of,developmental problems,bonding and the formation of natural speech and language difficulties.Also Mum had severe mental torture and degradation imposed upon her.I cannot believe the Judge did not have those responsible removed to prison in handcuffs!

    In any case where removal is considered proportionate to circumstances, procedural safeguards are to be followed scrupulously. For SW’s to remove a baby without ANY ORDER is WORSE than child kidnap by a criminal gang in my view.They are in a position of trust and if a parent rang Police, they would more likely not take decisive action but just refer them to the LA complaints procedures.Clearly there can have been no imminent danger calling for emergency action! Criminal charges were appropriate.The CS saw a vulnerable young family and abused its powers.

    Subsequent balance of probabilities-Comments

    No Court can rely on assessments or evidence from a CS department which acts maliciously.

    All its evidence following the unlawful act will have been calculated to justify it.

    The department will have also failed to examine all the less intrusive alternatives to removal such as mother and baby units,home supervision and an extended family placement.

    Mums with learning difficulties are not unable to care for a child.Even animals have natural maternal instincts.

    Had she agreed to sign an S20, the suggestion that she ‘lacked capacity’ would have evaporated into thin air!

    If a father is GENUINELY a violent drug addict presenting a danger to his wife and child, there will be GENUINE evidence and he should have been charged and/or taken before a criminal court which grants those agencies the power to exercise their paramount duty to protect the child by gaoling him or bailing him with conditions that he leave home.

    Especially with support,a dirty house can soon be cleaned up.

    The situation can then be monitored closely to lessen any perceived danger to the baby.

    Child not at risk of serious physical injury or death at all had the CS done its duty correctly.

    Circumstances were not dire and I doubt if either Mum or Dad displayed anything approaching deliberate malice towards baby.

    CS displayed something approaching malice. They will have selected a template (based on precedent)which fitted and contrived to adapt the case and all its evidence to fit.

    Only a semi-cretinous Judge would find baby should be removed.

    —————

    However, that is just one case and readers should think harder about the general issues as Sarah says..

    Reply
  10. angelo granda

    We should all focus ,as decided before,on restoring Public Trust in what we all agree is a deely flawed cp system.As part of that we have to recognise that the main problem is the lack of trust in the Family Courts,their modus operandi,their lawyers and above all,the Judges.

    We have all had the opportunity to read Appeal Court judgments and it is fairly clear that decisions taken by the Lower Courts often mystify the High Court judges who often severely criticise the building blocks used to construct cases. To say that respondents are also puzzled is an understatement and when the general public read of cases,they also are shocked.

    People have lost trust in the system not because it is ‘damned if it does and damned if it doesn’t’ but because its decisions appear to be irrational.The reason is that many decisions appear to be so unreasonable that they figure that no reasonable authority would ever consider imposing it.Not only that, a judge entrusted with discretion must direct himself properly in Law.If he glosses over the issue when legal guidelines and RULES are regularly and openly contravened ,deciding in any particular case that they need not always be followed strictly and he does not obey those rules,the Public are bound to suspect he is acting unreasonably.

    Public Trust is affected also when a Court makes a decision which appears to be so absurd that no sensible person could ever dream that it lay within the power of the authority.Falling into that category is any that strict rules pertaining specifically to the welfare of children and put into place specifically to protect children can be set on one side in the same welfare interests of children.
    The Public will think that is so unreasonable that it is done in bad faith!

    That is why I think the Family Courts don’t have Public trust and a lot of my thoughts come from http:interpretationofstatutes.blogspot.com.

    I would also like readers to consider Article 8 (proportionality) a little bit harder..My interpretation of advice sheets issued by the ECHR is that ‘relevant and sufficient reasons’ must be advanced for any interference with a Convention Right. Is it ” necessary in a democratic society”?. DOES IT CORRESPOND TO A “PRESSING SOCIAL NEED”?

    After thinking about this as hard as you can, do you think that subjective partisan views on the ‘welfare interests of children’ can ever correspond to A PRESSING SOCIAL NEED in the same way as we might be pressed to take away the liberty of a convicted criminal or interfere with the life of a suspected terrorist?

    I don’t think so! What do others think? As always I respect our patron’s views but will also welcome other opinions too from all sources.

    Reply
  11. ian josephs

    12 QUESTIONS THAT YOU CAN PUT TO YOUR LOCAL AUTHORITY !

    1 :- Can it ever be right to take thousands of babies at birth from sane law abiding mothers for « risk of emotional abuse” ? If so when? [cite your statistics please. The most usual reason for removal is ‘neglect’and has been for many years]

    2:-Research shows that Open Adoption works better than Closed so why do British Family Courts never permit Open adoptions that could allow children at least some contact with birth parents? [Indirect contact is the norm, together with life story work. I agree there needs to be more consideration of direct contact but it can be very tricky, particularly when people like you rile up birth parents into ‘hating’ SW and refusing to co-operate with them. You can imagine that really puts off adoptive parents wanting the birth parents in their lives.]

    3:- Why are law abiding citizens in UK deprived of their children for risk of things that may never happen?Surely babies should only be taken from those who break the laws not those who keep them? [They are not. Removing on risk of future harm is not common and it must be based on facts proved about things that happened in the past. So it is not as fanciful or speculative as you continually assert]

    4:- ,Only from UK do hundreds of pregnant mothers flee to Ireland,France,Spain,and N.Cyprus etc to give birth in safety from UK Social Services ;Surely this mass flight of pregnant mothers that happens nowhere else in the world indicates that something is badly wrong? [or it could indicate that sadly in this country we have a number of men who prey on vulnerable women and exploit them for their own gain – either personal aggrandisement or something worse]

    5:- When UK mothers do flee to other countries to give birth or to avoid UK Court proceedings for care orders on their children; why do Social Services pursue them and take proceedings in those other countries to retrieve the children for care in UK instead of leaving the foreign local social services in Ireland, France etc to deal with the situation? [Because if the children have already been born and have been removed the English court retains jurisdiction. I am not aware that the UK state routinely tries to remove people from foreign jurisdictions who have not yet given birth – there is no jurisdiction under the CA for an unborn baby]

    6:-When children are taken into care in UK their lap tops and mobile phones are usually immediately confiscated so that they cannot phone or email family or friends unlike murderers in prison who can do both.How can this limitation on childrens freedom to communicate be right? [Because sadly often the birth families are not communicating in a responsibly or healthy way and may be doing the children further harm]

    7:-When children in care see their parents at contact centres they and their parents are forbidden to cry,to discuss their case,to report abuse in care ,or to discuss returning home.;unlike murderers in prison who can discuss anything they like with their visitors. How can crushing freedom of speech be right? [Because it can be very abusive to a child if the parent spends the contact session crying or talking about how they want to take their child and run away. I appreciate its really hard for parents but contact needs to be about the child and making it a happy time for them, not discussing details of the court case or what the parent seen as an injustice]

    8:- Why do squads of 5 or 6 uniformed police arrive so frequently to take screaming frightened children from parents at around 7am from their beds and cart them off to isolation from family and friends? [Cite your statistics. This rarely happens, or at least in my experience over 15 years it has happened once]

    9:- The number of children taken from parents for physical or sexual abuse has dropped whilst the numbers taken for undefined emotional abuse has nearly doubled in the last five years as a percentage of the whole (judicial statistics).Could that be because children sexually or physically abused make poor adoption material? [neglect remains the highest number of cases. All abuse damages children and makes it more difficult for them to settle in a new family. It is always better to remove a child from an abusive situation BEFORE they are harmed.]

    10:-Can it be right that social workers who all have adoption scorecards are named and shamed within their own organisations if they do not achieve adoption targets? Surely this gives them an incentive to recommend forced adoptions when other solutions are possible and more desirable? [This is a worry and the Transparency Project are currently examining the responses to its FOI requests on this topic]

    11: Innocent until proved guilty” has been replaced in the UK family courts by “guilty if their guilt (smacking or injuring their child etc) is more probable (51%) than their innocence”; and as judges usually consider the allegations of social workers to be probably more reliable than the denials of parents the result is that parents once accused are usually found to have neglected or abused their own children.-Surely “innocent until proves guilty” is a fairer standard of proof? [Then you will need to campaign in Parliament; there is nothing SW or lawyers can do about this]

    12:-There are many cases in the UK where law abiding parents have been imprisoned for breaching “no contact orders” made by the family courts by waving at their children in the street, sending a birthday card, speaking to them at a chance meeting and even for posting “happy 21st birthday” on the internet.(yes 21st !).Surely such orders should be made illegal when such parents have never been convicted of harming their children? [Court orders are meant to be obeyed. If they are not this is contempt of court for which prison is a punishment. If parents don’t agree with the orders they need to appeal/apply to vary, not simply break them. That way lies chaos and anarchy and the court will take it very seriously. ]

    Reply
  12. angelo granda

    Ian,I agree with you for the most part but I am an ordinary parent.
    If you don-t mind, I think it is futile bringing copies or our own versions of your twelve points to MP’s.
    Do you think it would be easier to persuade the Family Justice system to reform its own practices? Or more effective to lobby the CS until it changes its ways?
    If Police were forced to follow up on complaints made by parents and children,it will help immeasurably.Try convincing the elected crime commissioners!
    I imagine you have already tried most things.To be honest with you,I won’t waste my time with MP’s any more.

    Reply

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