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 usually a lot of evidence has to be gathered – assessments of the parents and other family members will usually be needed so the court has the best information before it to make a decision that’s right for the child. There may be a need to get hold of police and medical evidence.

When Children Act 1989 was written, people 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 take a lot longer than a few months to sort out – the average case was taking a year or even longer to resolve. The government became so concerned about this that they 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.

Why do the Local Authority 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,  see this post on interim removal..


How long can an interim care order last?

Before the Children and Families Act 2014 became law on April 22nd 2014, an initial interim care order could  be made at the first hearing for 8 weeks and then could be renewed every 4 weeks for another 4 week period.  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  physically 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 4 weeks.

If those who first drafted 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 means that a court can make an interim care order or interim supervision order for a time specified in the order.  This could either be ‘until the proceedings are over’ or for a fixed period of time – for example until listing a hearing where the parents want to argue against the ICO continuing.

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

The stages of care proceedings – Is an interim care order before the final hearing inevitable? [Short answer – ‘No’]

See Practice Direction 12A of the Family Procedure Rules 2010. The aim of government reforms in 2014 was to speed up care proceedings which were taking a year or more on average to resolve. The reformed process attempted to set out these stages.

  • Stage 1 DAY 1-2  -the application is issued by the local authority (LA) and a decision is made about which is the right kind of court – magistrates, or district/circuit judge? This should take 2 days and the court will list the next hearing – the Case Management Hearing.
  • Stage 2, DAY 10-12  – an Advocates Meeting (meeting with the lawyers, social worker and guardian) no later than day 10 to make sure everyone is ready for CMH on day 12. On the ground, i am not sure this is happening, and certainly where an application is made urgently there is often not time to arrange a separate Advocates Meeting and the parties must meet and discuss matters at court. There are now about 18 weeks before Stage 3 so it is possible for the court to list Further Case Management Hearings (FCMH) depending on the complexity o the case and the need for expert evidence etc.
  • Stage 3 WEEK 20 – must be no later than 20 weeks from the date of the application and is called the Issues Resolution Hearing (IRH). This should not be just 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 at the IRH, the court will set dates for the Final Hearing, where the court hears evidence from all the parties, considers the written evidence and makes a final decision.
  • FINAL HEARING BY WEEK 26 – You can get permission to go beyond 26 weeks but you will have to convince the court this is necessary and give clear reasons.

It certainly not inevitable that an ICO will be made before the Final Hearing. . A lot can happen at the first Case Management 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?

You are entitled to argue that an ICO should not be made at all, or if it has already been made you are entitled to argue that it should be discharged. However, this is a tricky situation and you need to take advice from your legal team about the best way forward.

If for example an ICO has already been made but nothing has changed and you have no fresh evidence, your chances of success are pretty limited unless you are arguing that the Judge got the law or facts wrong.

If the LA seek an ICO at an early stage and you don’t agree this is necessary you will need to consider whether you argue against it now or wait until the final hearing when hopefully all assessments will be complete and all relevant evidence is before the court.

It is not always a good idea to try and argue against the LA case at an early stage where you may not have all the evidence you need and there may be a risk that findings are made against you which could be hard to shake later on. However, it is every parents’ right to argue against the making of an ICO if they wish and no judge or lawyer should put unreasonable pressure on a parent to back down – note the serious problems which flowed from a Judge who subjected a mother in care proceedings to ‘improper’ pressure and was rude to her barrister G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019)

The court commented in this case that it should be rare in hearings about ICOs for facts to be found which would determine the cases at a final hearing as the test for a ICO is different to the test for a full care order; an ICO only requires the court to have ‘reasonable grounds’ to think that a child is at risk of harm or has suffered harm.  I am not so sure about that in reality. If you argue against an ICO being made it seems inevitable that you are asking the court to make decisions about certain facts; if the decision goes against you that is something that risks hardening as the process continues and will be more difficult to unpick at a final hearing.

The best thing to do is make it as clear as you can as soon as possible to your solicitor/barrister that you do not accept the ICO and listen to their advice about what realistically you can achieve by arguing against the ICO before the final hearing takes place.


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.

Can the court make an ICO for a child who is 17 years old?

A ‘child’ is defined as a person who is under 18 years of age. However, once children are teenagers, things get more tricky in terms of imposing court orders on them – generally the court is going to be reluctant to make any orders about children who are 16 or older and there are clear statutory limits about what orders can be made in other kind of proceedings about teenagers. The impact of Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112 made clear that the older a child became, the less likely it was that orders would be made with which s/he did not agree, in proceedings which had been brought by adults.

A full care order cannot be made once a child is 17 – see section 31(3) of the Children Act.  However if the full care order was made before the child is 17, it carries on until his 18th birthday – see ection 91(12) of the Children Act 1989 which provides that “any care order, other than an interim care order, shall continue in force until the child reaches the age of eighteen, unless it is brought to an end earlier”

So what is the position for interim care orders? The court looked at this question in the case of Q (Child – Interim Care Order – Jurisdiction), Re [2019] EWHC 512 (Fam). The court made an ICO with regard to 4 children, one of whom was going to be 17 soon after the order was made. The question was – can the ICO continue for the child once she is 17 years old?  The parents and the Guardian all objected to this, pointing out that this meant the child would be subject to a non-consensual order without the level of scrutiny that would be required when making a full care order.

The court agreed and  found at para 28 that no interim care or supervision order will endure beyond the date of a child’s seventeenth birthday or the date of a child’s marriage if aged sixteen. 

However, that did not mean that continuing the care proceedings, even if an ICO or final care order could not be made was impermissible. The judge commented:

In my view, there is a distinction between the making of interim public law orders on an adjournment where a child has turned seventeen and the continuation of the section 31 proceedings themselves. I remind myself that no court seised of public law proceedings is required to make either interim or final public law orders. It may decide that a section 8 order or indeed no order is an appropriate disposal at either an interim or final stage. Whilst no interim or final public law order would, on my analysis of section 38(4), be available in respect of a seventeen year old child (or sixteen if married), I am not persuaded that these welfare-driven proceedings themselves would necessarily lack purpose and must fall away once the jurisdiction to make either interim or final public law orders is lost. In some cases, it may be crucial to establish whether the threshold criteria have been met because this might determine the basis for future decision making by a local authority, for example, as to the type of support available to the child or family concerned. Whether that exercise is necessary and proportionate will be a matter for the good sense of the judge managing/determining the proceedings.