Before the Care Order

My child hasn’t been born yet but I have been referred to children’s services

Referring an Unborn Baby

If some one is worried that you or your baby may need help after the baby is born, they can refer this to children’s services. It is good practice for the person who wants to refer – for e.g. a midwife – to let you know he/she wants to do this and to get your agreement. However, if there are reasons to think this might put the baby at risk – for e.g. they are worried you might leave the country – then you may not be told.


What would worry people enough to refer me?

Below are some examples of situations that might make someone worried enough to want to refer you. This isn’t an exhaustive list. Basically, if there is a fear that your baby might be at risk of significant harm once he or she is born, then a referral should be made.

  • Existing concerns about either parent’s ability to keep the child safe – for e.g. because the parents are drug users
  • If the parents have had other children removed from their care
  • If the parents have criminal convictions for an offence against children, or the parents are associating with people who have such convictions.

Ideally referrals should be made no later than the 18th week of the pregnancy so a proper pre birth assessment can be carried out – see below.


What happens after the referral is made?

There should be a Pre Birth Assessment. The courts cannot make a care order before a child is born, so if there are worries about how safe that child will be once born, there needs to be some thought and planning about what will happen after the birth.

There should be a meeting to plan the pre-birth assessment, ideally no later than 20th week of the pregnancy. Any professional or agency who has had significant dealings with the family should be invited, such as the midwife and family GP.  If the police have any information about the family, it is useful to have that at the meeting.

Parents should be involved in the planning as far as possible. The assessment should be completed with 35 days of starting.

Depending on the outcome of that pre-birth assessment, there may be a need for further meetings. For example if the pre-birth assessments showed that the baby was at high risk of harm when born.   In such cases, a strategy meeting will need to happen in order to decide whether or not care proceedings need to be issued once the baby is born.


The pre-proceedings process

For more information about pre-proceedings, see this post. 

The pre-proceedings process for care proceedings was introduced with the original Public Law Outline in 2008. The aim of this process is:

  • to try and stop cases turning into care proceedings by engaging with the parents at an early stage; or
  • if that isn’t possible, to encourage everyone to think early about the issues so that cases would run more efficiently.

The local authority is required to take legal advice to establish whether the requirements for court applications and orders are met. It should then send a ‘letter before proceedings’ to the parents, outlining its concerns and inviting them to a pre-proceedings meeting.

The letter entitles parents to legal aid so that they can obtain legal advice and be accompanied by their lawyer to the meeting.

Following the meeting, the local authority was required to send a revised plan for the child, setting out what the parents must do to safeguard the child and the action the local authority would take if they do not keep to this.

The pre-proceedings process seems to be used often with unborn babies as it sets out a useful framework for discussion and allows the parents access to legal advice.

See the article in Family Law Week by Professor Judith Masson and Dr Jonathan Dickens in 2013:

Two features were common in cases where the pre-proceedings process was used: (1) Almost all the children had child protection plans; this was true for less than half of the cases taken directly to court. Local authorities used the pre-proceedings process as ‘a step up’ from ordinary child protection planning, to mark the seriousness of their concerns or where parents had not responded sufficiently to the child protection plan. (2) Thirty per cent of the cases related to unborn babies; the pre-proceedings process provided a framework for working with parents in these cases and enabled parents to have legal advice when crucial matters were discussed such as co-operation with pre-birth assessment or the baby’s care after discharge from hospital. These are high risk cases; the vulnerability of new babies means that lack of parental co-operation with a protection plan may lead to a decision to remove the child. Criticism of local authorities for using Children Act 1989, s.20 accommodation (R (G) v Nottingham CC [2008] EWHC 152 (Admin), Coventry CC v C [2012] EWHC 2190 (Fam)) has made it more important for the local authority to ensure that parents have legal advice.

For further discussion about the possible difficulties of using section 20 accommodation for new born babies, see this post about the meaning of section 20 and when it should be used.