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  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.