Tag Archives: 26 weeks

What do we mean by the ‘welfare stage’ of care proceedings?

Care proceedings involve a two stage legal test

As we discussed in another post about ‘threshold criteria’,  a court can only make a care or supervision order if it is satisfied it has passed both parts of a two stage test –

First – that the necessary ‘threshold criteria’ must be found proved on the balance of probabilities  in order to show that the child has suffered or is at risk of suffering significant harm.

Second – is it is in the best interests of the child to make a care or supervision order?

This second stage is often called ‘the welfare stage’ because the court has to focus on what order would best meet the child’s interests; or in other words, what does the child’s welfare require the court to do?

It used to be called the ‘disposal stage’ but it was soon noticed that this was an unpleasant way to refer to children’s proceedings. ‘Welfare stage’ is a much more appropriate way of signposting that the focus should now be on what the child needs.

Therefore, even if the court is satisfied a child has suffered significant harm, a care order and removal from the parents does not automatically follow. For example, if the parents have engaged with the LA and are working to change things for the better, the court may make no order or only a supervision order.

Or the court may make a child arrangements order (previously ‘residence order’) or Special Guardianship order in favour of another family member, which may mean the parents can carry on having direct contact with the children after the final hearing.

 

What does the court need to consider when looking at the ‘welfare stage’ ?

The fundamental principle behind the Children Act 1989 can be found in Part 1, section 1. This states that when the court is determining a question with regard to a child’s upbringing:

The child’s welfare shall be the paramount consideration

We need to unpick what is meant by that. Section 1(2) reminds the court of the principle of ‘no delay’ i.e there is an assumption that any delay in making a decision is likely to harm the child’s welfare. You can argue that ‘planned and purposeful’ delay could actually be a good thing for the child – for example, you need more time to finish assessments of family members who could care for him. But you will need to remember the impact of the new Public Law Outline which sets a strict 26 week timetable for care proceedings to finish.

Section 1(5) sets out the ‘no order principle’ – the court should only make an order if this would be better for the child than no order at all. This is in line with the principle of ‘least intervention’ and the requirements of Article 8 of the ECHR.

Section 1(3) is very important as this sets out the ‘welfare checklist’ which is a reminder to the Judge of all the things he or she needs to show have been considered in the judgment. If a Judge makes a decision about a case but can’t show how the welfare checklist was considered, this could make the judgement vulnerable to an appeal.

 

The Welfare Checklist under the Children Act 1989

  • the ascertainable wishes and feelings of the child concerned (considered in 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, and 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

 

The welfare checklist under the Adoption and Children Act 2002

When the court is considering placement or adoption orders, the court must also consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act

  • the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)
  • the child’s particular needs
  • the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person
  • the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant
  • any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering
  • the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including
    • the likelihood of any such relationship continuing and the value to the child of its doing so
    • the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs
    • the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

The warnings from Re B-S (Children) [2013]

The recent case of Re B-S (Children) [2013] contained stern warnings from the Court of Appeal about the importance of good clear analysis about what was in a child’s best interests, particularly when the court was thinking about endorsing a care plan that would lead to adoption. 

The key points of the judgment can be summarised as:

  • Adoption is the ‘last resort’ [para 22]
  • the starting point needed to be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
  • the least interventionist approach is to be preferred [para 23]
  • The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
  • There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option.[para 34]
  • The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
  • That the court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [ para 28]
  • The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]
  • The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of  all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e rejecting option A, then moving on to option B etc.

They said at paragraph 44 of the judgment:

“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”

The court also made it clear that proceedings could take longer than 26 weeks if more time was needed to resolve a case justly. See paragraph 49.

Suesspicious minds offers a good analogy to show us why  ‘linear evaluations’ of evidence can be so dangerous in this blog post  

 

Interim care orders – What are they?

An ‘interim care order’ (ICO) is an order that can be made by the court before the final hearing, when all the evidence is put before the Judge and a final decision is made about your child’s future. Final hearings often take a while to organise as a lot of evidence has to be gathered – assessments of the parents and other family members will usually be needed in order to inform the court what is the best decision to make for any individual child.

Those who drafted the Children Act 1989 thought care proceedings from start to finish would be over in a few months. Therefore, the initial plan was that an ICO would hold the fort for a short period of time until the final hearing could be listed and a final care (or supervision) order made.

But what happened shortly after the Children Act came into force,  was that care proceedings began to balloon out of all recognition to the original plan and the average case was taking a year or even longer to resolve. The government became so concerned about this that they have enacted the Children and Families Act 2014; section 14 provides that care proceedings must finish as soon as possible or take no more than 26 weeks.

There is an interesting article here from the President of the Family Division about the history of the family courts and the efforts that have been made to streamline family proceedings. 

Interim care orders are found at section 38 of the Children Act 1989. Under section 38(2)  the court shall not make an interim care order or interim supervision order under this section ‘unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)’ i.e. that the child has suffered or is at risk of suffering significant harm.

 

How long can an interim care order last?

Prior to the Children and Families Act 2014 coming into force on April 22nd 2014, an initial interim care order could  be made on the first occasion for 8 weeks but thereafter for only 4 weeks on each renewal. This lead to a lot of orders being renewed ‘administratively’ i.e. the parties agree at the outset they won’t object to any further renewal. This saved the parties from  coming back to court every 4 weeks for another hearing, but still generated a lot of paperwork as fresh interim care orders had to be printed out every 28 days.

Had the original drafters of the Children Act realised how long care proceedings would become it is doubtful they would have opted for this 4 week period.  The change to the law will mean that a court can make an interim care order or interim supervision order for a time specified in the order.  At the moment, it is too early to say how this is going to operate in practice – will courts simply say the interim care order is to last until the proceedings conclude? Or would it be better to have a fixed time limit?

For more discussion about this issue, see this article by Andrew Pack.

The stages of care proceedings

See Practice Direction 12A of the Family Procedure Rules 2010. The aim of recent government reforms in 2014 is to speed up care proceedings. There are now three stages in the court process;

  • Stage 1 the application is issued by the local authority (LA) and allocated to the appropriate court. This takes 2 days.
  • Stage 2, an Advocates Meeting (meeting with the lawyers, social worker and guardian) no later than day 10 to accommodate the Case Management Hearing (CMH) on day 12.
  • Stage 3 must be no later than 20 weeks from the date of the application and is called the Issues Resolution Hearing (IRH). This is no longer a directions hearing but instead a ‘genuine and informed attempt at resolving issues’. The hope is that some cases can be agreed at this hearing.

If you can’t agree the best way forward at the IRH, the court will find some dates for you to come back for the Final Hearing – this is where the court hears evidence from all the parties and makes a final decision.

You may be asked to decide how long you will need for a final hearing at the time of the case management hearing, which is pretty early on In the timetable and it may be impossible by day 12 to know how this case will pan out by day 140. Your lawyer will do his/her best to get a suitable timetable.

The LA must produce a numerous documents with its application, including genograms and a chronology, and there will be further documents not necessary disclosed but which can be requested. All must come to the Advocates Meeting ready and able to set out precisely what the case needs in terms of any further expert analysis, to have identified the necessary experts and found out how long they would take and how much they would cost.

Is an interim care order at stage 1 inevitable?

No. A lot can happen at the first hearing. If everyone agrees to work in co-operation with one another the LA are often content not to push for any kind of order but simply timetable the case through to a final hearing. Parents may agree to sign up to a ‘schedule of expectations’ – a list of things they need to do or stop doing in order to keep their child at home. If everyone is happy that the situation can be managed over the coming months without a care order then there is no need for such an order and it shouldn’t be made.

Schedule of expectations/written agreements.

If you do sign any kind of document that sets out in writing what is expected of you before the final hearing, do be careful to read it carefully and only sign if you think that you are going to be able to stick to its terms. If you don’t go on to do what you agreed to do in the document,  this is usually a big source of concern to social workers and the court. So if what is expected of you seems unreasonable or just not possible to achieve, make sure you speak up at the time or tell your lawyer.

Written agreements should not be used to get a care order ‘by the back door’. See the case of Re W [2014] for further discussion of this.

There is also a very helpful blog post by suessipcious minds which offers more advice to parents who are being asked to sign a written agreement. 

 

Can I argue against an interim care order?

If an interim care order has already been made and you don’t think this is the right order, you are entitled to make that argument before the court.  However, you will need to think about the reasons why you say an ICO should not continue. For example, has there been a real change in your circumstances which might mean the ICO is no longer needed? If what you are saying is that the ICO should never have been made in the first place, the court can list your case for a contested hearing but in some cases it may be better to wait until the final hearing when you have all the information and the court has time to really get to grips with all the issues. The best thing to do is take advice from your lawyer about what realistically you can achieve by arguing against the ICO before the final hearing takes place.

Why do the LA want an ICO?

Only a care order or interim care order allows the LA to share parental responsibility with the parents and in reality it puts them in the ‘driving seat’ when it comes to making decisions about your child. However, an ICO doesn’t mean you lose parental responsibility – the LA must still consult you about decisions it wants to make about your child.

In some cases concerns are serious and there isn’t much trust or co-operation between the parties. In a case like that the LA are very likely to ask for an interim care order and may even ask that the child is removed from home following that order.

If the LA are saying they want an interim care order to remove your children from your care, we deal with it here.

Power to exclude people from the child’s address in an ICO

Under section 38A of the Children Act a court can put an ‘exclusion requirement’ in an ICO. This is defined as

  • making someone leave a house in which he/she lives with a child
  • stop someone entering the house where the child lives
  • keep someone out of a defined area near the house where the child lives

The court can make this ‘exclusion requirement’ if the following conditions are met:

  • there are reasonable grounds to believe that if the person is excluded, the child will stop suffering significant harm or no longer be at risk of suffering significant harm AND
  • there is someone else living with the child who can look after him/her and agrees to the exclusion requirement.

The court can attach a ‘power of arrest’ to the exclusion requirement under section 38A(5) which means the police can arrest anyone believed to be in breach of this requirement, without needing a warrant for their arrest.