Public Law Care Proceedings
When a local authority (social services) decides that they need to get involved with a family to keep a child safe, they may start a court case. This sort of case is called a “public law care proceedings” case or “care proceedings”. Usually, this happens after the local authority has tried to make things safer but feels that this has not worked – but sometimes there is no time for this.
In a real emergency the police can remove children for up to 72 hours (this is called police protective powers, sometimes incorrectly called a “police protection order”). The court can authorise the removal of children for up to 8 days under an Emergency Protection Order. Apart from when police use their emergency powers of protection, and removal of your child from your care by social services must be either agreed upon by you or approved by a court. If you are being asked to agree to your child being looked after by social services (sometimes called section 20 accommodation) please see our FAQs which provide links to helpful guidance about section 20. Often where a child has been removed in an emergency like this, social services will also start a care case to deal with the longer term.
There are four main types of orders that the Court might be asked to make in a care case :
- Care Order – this order gives the local authority parental responsibility for a child so that they can control things such as education, health and day-to-day parenting decisions for the children. Usually, when the court makes a care order, the children will live with foster carers, but in some cases, they might remain at home or with a family member such as a grandparent. The parents still have rights, but the local authority is in charge.
- If a local authority thinks that it is necessary for a child to be adopted, they must get a Care Order and a Placement Order from the Court, which allows them to place a child with people who will adopt them.
- Supervision Order – this order ensures that the local authority advises, befriends and assists the Child as necessary, but it doesn’t give social services any decision making power. Usually, the Children remain within the family under this order.
- Special Guardianship Order – this order gives Special Guardians parental responsibility for the Children alongside the Children’s parents. The Special Guardians will have the ability to make most decisions about the Children’s welfare independently of the parents – the Special Guardians are in charge. Special Guardianship orders are most often made where a child is cared for by extended family.
Before the court can make a Care or Supervision Order it must decide that the child has suffered or is at risk of suffering significant harm due to the care they are receiving.
Often the Court is asked to make Interim Care Orders or Interim Supervision Orders. Interim just means temporary. These orders are the same as Care Orders and Supervision Orders above but only last until the end of the court case. Before making a temporary order, the court must decide that there are reasonable grounds to believe the child has suffered or is at risk of suffering significant harm due to the care they are receiving. Before the court can approve making an order that will let the local authority take a child away and put them in foster care or with a relative, the court must also decide that the decision cannot wait until the end of the case because of a risk to the child’s safety. A child’s safety includes things like a risk of physical harm but also includes things like risks of emotional harm.
Legal Aid is always available for parents in these cases and anyone else who holds parental responsibility (anyone with an order saying the child should live with them usually has parental responsibility). This means these parents will get a lawyer for free. Sometimes legal aid is also available for family members/carers even if they don’t have parental responsibility, but this will depend on various things, including their income. If you think you may be entitled to Legal Aid, you should speak to a solicitor.
If you are a parent involved in this sort of case, you are entitled to a lawyer; you do not have to pay. They will be independent of social services and will give you advice so you can make decisions about your options and your case. It is important to get advice as soon as possible.
Your child will be entitled to a lawyer as well. The court will appoint a Guardian for the child from CAFCASS (a Guardian in this context means someone who looks after their interests in the case, not somebody who takes over their care). CAFCASS is independent of social services, and the Guardian will not be paid by social services. The Guardian will choose and give instructions to the lawyer representing your child about what is best for them and what your children want. If your child is old enough and disagrees with the Guardian, they might be helped to instruct their own solicitor. It is the Guardian’s job to give a view independent of the parents and of social services to help the court work out what is best for the children. Sometimes the Guardian agrees with social services, and sometimes they do not.
The law says that this sort of case should be finished within 26 weeks (6 months) of starting unless there are exceptional reasons. This means that it is really important to take part in the court process and instruct a lawyer right from the start and to work out what you need to do to be able to show you can safely care for your child by the end of the case. Six months is not very long, and it will go very quickly.
There are several different types of hearings within care proceedings. These are :
Case Management Hearing
This is a short hearing to make plans for how and when the case is going to be decided. The court will make directions to get all the information it needs and to allow everyone involved to have their say by making a statement in writing or providing evidence. This might include saying that certain assessments of the parents or children should be carried out. Where there are more than one of these hearings, they are called “further case management hearings”.
Contested Removal Hearing
If social services want to remove a child at the start of the case and the parents do not agree, the court will hold a hearing where it can decide whether this should happen. Typically this might take a whole day, and the court will hear some evidence from the social worker, guardian and the parents – but the exact length and format will depend on the circumstances.
Issues Resolution Hearing
Once all of the evidence is gathered together and social services have said what their final plans are for the child, the court will hold an Issues Resolution Hearing to see if some or all of the issues can be agreed upon. Sometimes parents agree that a child should go and live with a relative, for example, and if everything is agreed upon, the court can make final orders and finish the case there and then, which is easier for everyone. If anyone doesn’t agree with the plans, the court will list a Final Hearing.
At a final hearing, the court will hear all the evidence, and the parents can challenge the plans through their lawyers asking questions of the witnesses. These hearings typically take days rather than hours, but it depends on the case.
This is a new development being piloted in some areas. When everyone agrees, the court can arrange a settlement conference to try and encourage everyone to agree on things without a long hearing. It is a little bit like mediation run by a judge. There is some information on settlement conferences here.