4 Brick Court was first established in the 1970’s and has evolved into the specialist family law set that it is today.
Our passion for family law combined with our pride in being able to offer specialist Counsel with a wide range of experience in acting for all sides in public law, private law and financial remedy proceedings brings a knowledge and tactical advantage that are often profoundly important in achieving the very best outcome for our clients.
We are a committed and welfare based group of practitioners representing parents and children who are often in crisis. At the core of chambers’ philosophy is a team work ethic underpinned by a shared commitment to achieving family and social justice. We have a strong client welfare approach.
Our casework includes some of the most serious and medically complex cases before the family courts in which our senior members often lead our junior members.
We are expert in all areas of private law. We also work closely with solicitors acting for parents in public law cases.
We often work closely with local authorities and have an extensive understanding of social work practice and the internal management of social services.
We are proud supporters of the charity Grandparents Plus.
Ian Griffin
Sophie Crampton
Elin Hughes
1 May 2019
‘The Interface between Private and Public Family Law’
Part 1: Local Authority involvement
Level 1: Section 7 report
1.1 Under s7(1) of the Children Act 1989, a court considering any question with respect to a child under this Act may –
(a) ask an officer of the Service or a Welsh family proceedings officer; or
(b) ask a local authority to arrange for –
(i) an officer of the authority; or
(ii) such other person (other than an officer of the Service or a Welsh family proceedings officer) as the authority considers appropriate,
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.
1.2 In accordance with practice direction 12B, paragraph 14(b), section 7 reports should only be ordered in cases where there is a dispute as to with whom the child should live, spend time, or otherwise have contact with. A report can also be ordered:
(i) If there is an issue concerning the child’s wishes, and/or
(ii) If there is an alleged risk to the child, and/or
(iii) Where information and advice is needed which the court considers to be necessary before a decision can be reached in the case.
1.3 As a matter of course, these reports are completed by CAFCASS. However, as s7 makes clear, the court can direct the local authority to prepare this report and this may be the most appropriate course of action where the local authority has been involved previously or where the court is considering an alleged risk to the child.
1.4 A s7 report allows the local authority to make recommendations to the court as to the most appropriate order, if any, in respect of the child. However, their involvement with the proceedings is limit to an advisory role. A s7 report limits the local authority to considering the questions asked of it by the court and does not extend to a consideration of whether they should have further involvement with the family or issue care proceedings.
Scenario
Sarah and James have one child, Amy, who is now 5 years of age. Amy was the subject of a supervision order made 2 years previously to the London Borough of Wandsworth (LBW). The supervision order expired a year ago but Amy has remained on a CIN plan (child in need) due to Sarah’s anxiety and the risk of drug relapse.
Sarah and James both had drug abuse issues (cocaine) that they managed to resolve during the previous care proceedings. James is a city trader. He has recently had a relapse into cocaine use. Sarah has left him and has moved to Richmond to live with her mother. She alleges that James is taking cocaine and is a danger to the children. James seeks a ‘spend time with order.’ The matter is listed for a FHDRA. You act for Sarah who wants no contact with James for her or Amy ever again. What will happen regarding the involvement of LBW?
The issues are / may be:-
a) Schedule 2 letter Cafcass involvement, basic checks and contact with social services,
b) Mediation?
C) Reports, PD 12B under 14.13.
(d) In determining whether a request for a report should be directed to the relevant local authority or to Cafcass/CAFCASS Cymru, the court should consider such information as Cafcass/CAFCASS Cymru has provided about the extent and nature of the local authority’s current or recent involvement with the subject of the application and the parties, and any relevant protocol between Cafcass and the Association of Directors of Children’s Services.
d) What authority?
e) Exchange of information between local authorities. Numerous hits on the internet. Esp see :- http://www.londoncp.co.uk/
London Child Protection Procedures and Practice Guidance,
London Children Safeguarding Board.
f) Difference between local authority social worker approach and Cafcass?
g) CIN – higher level of cooperation
h) Likely recommendations?
i) Final hearing
Level 2: Special Guardianship Orders
2.1 Pursuant to s14C(1) of the Children Act 1989, a special guardianship order is an order granting parental responsibility to an individual (the ‘special guardian’) and, subject to any other order in force, enables the special guardian to exercise parental responsibility to the exclusion of any other person with parental responsibility. In accordance with s14A(2), a special guardian must be aged 18 years old or over and must not be a parent of the child in question.
2.2 Special guardianship orders are private law orders but despite this, an application for this order requires substantial local authority involvement. Pursuant to s14A(7) of the Children Act 1989, no individual may apply for a special guardianship order unless he has given at least 3 months notice of his intention to make the application to the local authority.
2.3 Where the prospective special guardian is not one of the individuals entitled to apply for a special guardianship order under s14A(5), they must ask the court for permission to apply. Pursuant s14A(12), the criteria under s10(9) of the Children Act 1989, for determining whether an individual should be given permission to apply for a s8 order, equally apply to special guardianship orders.
2.4 The criteria under s10(9) are also used to determine whether an individual, including prospective special guardians, can be joined as a party to existing private law proceedings (as per Black LJ in Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737, paragraph 37).
2.5 Prospective special guardians cannot give the local authority notice of their intention to apply for a special guardianship order without first obtaining permission to apply (as per the Court of Appeal judgment in Birmingham City Council v R [2006] EWCA Civ 1748, paragraph 95).
2.6 On receipt of notice that an individual intends to apply for a special guardianship order, the local authority is then under a duty to prepare a report on the applicant’s suitability to be a special guardian (s14A(8) of the Children Act 1989). The court can also compel the local authority to produce this report (s14A(9) of the Children Act 1989).
2.7 In light of the local authority’s involvement in these applications, it is perhaps unsurprising that not only are special guardianship orders utilised by the local authority in public law proceedings but that prospective special guardians in private law proceedings are often supported by the local authority. In this way, the local authority becomes indirectly involved in private law proceedings through the special guardian.
2.8 Individuals who can apply. 14A(5)
(5) The individuals who are entitled to apply for a special guardianship order with respect to a child are—
(a) any guardian of the child;
(b) any individual [F2who is named in a child arrangements order as a person with whom the child is to live;]
(c) any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d) a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.
(e) a relative with whom the child has lived for a period of at least one year immediately preceding the application.
Financial assistance:-
The Special Guardianship Regulations 2005
– Review of decision
Report 14A
7) No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—
(a) if the child in question is being looked after by a local authority, to that local authority, or
(b) otherwise, to the local authority in whose area the individual is ordinarily resident.
8) on receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—
(a) the suitability of the applicant to be a special guardian;
(b) such matters (if any) as may be prescribed by the Secretary of State; and
(c) any other matter which the local authority consider to be relevant.
Scenario
Margaret is the grandmother of Toni who has lived within her since she was 3. She is now 13 years of age. Toni’s Cambridge educated mother, Portia, left Toni with Margaret to live in India to set up a silk trading company with her then partner, Parris. She rarely returns home, about once a year, and agreed to Margaret having a residence order in respect to Toni 8 years ago. Toni is settled and thriving with Margaret.
Portia has split up with Parris and has returned to live in the UK. She wants Toni back and plans to travel around south east Asia with her and home tutor her ‘on the way’.
Margaret considers that Portia has clear signs of drug use and appears to be functioning at a chaotic level. She was recently arrested at a ‘crack house’ in a nearby town. Portia lives in a neighbouring borough.
Margaret wants to secure Toni’s future and to be able to make decisions for her without referring to Toni. Margaret is independently wealthy having been left a considerable inheritance.
She comes to you for initial advice.
The issues are:-
Level 3: Section 37 report
3.1 Section 37 of the Children Act 1989, provides that;
(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.
(2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should –
(a) apply for a care order or for a supervision order with respect to the child;
(b) provide services or assistance for the child or his family; or
(c) take any other action with respect to the child.
3.2 An order under s37 compels the local authority to seriously consider whether care proceedings should be issued and forces them to justify any decision not to do so (s37(3)(a)). This direction involves a very high level of local authority involvement as, even if they do not issue care proceedings, their report must set out any service or assistance which they have provided, or to intend to provide, for the child and his family (s37(3)(b)) and any other action which they have taken, or propose to take, with respect to the child (s37(3)(c)). The local authority’s conclusions under s37 will influence the future course of proceedings and what orders the court ultimately makes.
3.3 If the local authority ultimately decided not to issue proceedings, the court has no power to make a care order or supervision order of its own motion (as per Sir Stephen Brown P in Nottinghamshire County Council v P [1993] EWCA Civ 35)
3.4 The court has the power under s38(1)(b) of the Children Act 1989 to make an interim care order or supervision order while a s37 investigation is ongoing. Pursuant to s38(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 circumstances with respect to the child are as mentioned in section 31(2), namely;
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.
3.5 If the local authority decides to issue proceedings for a care or supervision order, these proceedings will take priority over existing private law proceedings. Under s9(1) of the Children Act 1989, no court shall make a child arrangements order with respect to a child who is in the care of the local authority, other than an order relating to who the child is to live with and when the child is to live with any person.
Scenario
Jake and Adebole met at public school and relatively soon after university set up a Hedge Fund.
Jake married Annabelle and has 3 children with her, Sarah, now 9, Bertram, now 7 and Angelica aged 3. Adebole’s wife is Susan, they do not have children.
Jake and Adebole sell the Hedge Fund for £60 million and have a party in the Savoy to celebrate. At the end party Annabelle and Adebole tell Jake and Susan that they have been having an affair and want to live together.
Annabelle moves out of the family home with the children and rents a house local to the FMH. She plans to eventually live with Adebole.
‘Staying Contact’ to the children is arranged and on a Saturday morning Jake attends to pick up the children. He and Annabelle argue and he punches her on the jaw, breaking it and knocking her out. The police attend and Jake is arrested. The children witness the assault. The police notify the local authority of the incident.
Annabelle refuses all contact between the children and Jake. Jake applies for a CAO and the matter is listed for a FH. Annabelle’s statement sets out a long list of serious DV including incidents of throttling and severe physical violence. Sarah is interviewed and she talks extensively about Mummy being hurt by Daddy and at one point she says that she thought Mummy might die. She is clearly very disturbed.
Annabelle is seen by a SW who is undertaking a s47 investigation and tells her that she has been the subject of severe DV and coercive control by Jake throughout their relationship and that the children have regularly witnessed it.
Jake is prosecuted and pleads guilty to ABH. Largely as a result of a request by Anabelle, Jake does not receive a custodial sentence.
At the final hearing, to the surprise of their representatives, Jake and Annabelle announce that they are reunited and will be moving back in together after the hearing.
The exceptionally experienced DJ makes a section 37 direction.
What happens next:-
Part 2A: Appointment of the Children’s Guardian: Section 41
1.1 Section 41(1) of the Children Act 1989 provides that;
For the purpose of any specified proceedings, the court shall appoint an officer of the Service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.
1.2 The list of specified proceedings is contained within s41(6). This list refers to public law proceedings or applications made in public law proceedings except s41(6)(b), namely;
Any proceedings in which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order.
1.3 Importantly, this direction only applies where the court is considering making an interim care order and does not authorise the court to appoint a guardian where it has made a s37 direction but is not considering making such an order.
1.4 Rule 16.3(1) of the FPR emphasises that where a child is a party to or subject of specified proceedings, a children’s guardian must be appointed unless the court is satisfied it is not necessary to do so to safeguard the interests of the child.
Part 2B: Appointment of the Children’s Guardian: Rule 16.4
Rule 16.4 of the FPR provides that, without prejudice to rule 8.42 (Application for consent to marriage or civil partnership of a child) or rule 16.6 (circumstances in which a child does not need a guardian), the court must appoint a children’s guardian for a child who is the subject of proceedings, which are not specified proceedings or adoption proceedings, if –
(a) the child is an applicant in the proceedings;
(b) a provision in these rules provides for the child to be a party to the proceedings; or
(c) the court has made the child a party in accordance with rule 16.2.
Child as a party to proceedings
1.1 Under rule 16.2(1), the court may make a child a party to proceedings if it considers it is in the best interests of the child to do so.
1.2 Practice direction 16A provides guidance on when a child should be made a party to proceedings. Paragraph 7.1 emphasises that this step should only be taken in cases of significant difficulty and consideration should be given to whether an alternative route may be preferable e.g. making a referral to social services.
1.3 Paragraph 7.2 offers guidance on the situations where it may be appropriate to make a child a party to proceedings. This paragraph stresses that this list is provided as guidance only and that the decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The situations outlined in paragraph 7.2 are as follows;
(a) where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party;
(b) where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties;
(c) where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;
(d) where the views and wishes of the child cannot be adequately met by a report to the court;
(e) where an older child is opposing a proposed course of action;
(f) where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;
(g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;
(h) where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of an officer of the Service or Welsh family proceedings officer;
(i) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;
(j) where there is a contested issue about scientific testing.
1.4 Pursuant to paragraph 7.3, the court must take into account the risk of delay or other factors adverse to the child in deciding whether to make the child a party to proceedings. The court’s primary consideration will be the best interests of the child.
1.5 In relation to articulate teenagers, the court must take into account their right to freedom of expression and participation. Sir James Munby in the case of Cambra v Jones and another [2014] All ER (D) 30 (Apr) cited with approval the view expressed by Thorpe LJ at paragraph 28 of his judgment in Mabon v Mabon [2005] EWCA Civ 634, namely;
“we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”
1.6 In relation to Hague Convention proceedings, Baroness Hale commented at paragraph 60 of her judgment in the case of Re D (a child) [2006] UKHL 51 that full scale legal representation of a child will only be necessary in a few cases but that the child should be represented “whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward”.
Rule 16.6
1.7 Under Rule 16.6(1), a child may conduct proceedings without a children’s guardian or litigation friend where the proceedings are proceedings –
(a) under the 1989 Act;
(b) to which Part 11 (applications for forced marriage protection orders or female genital mutilation protection orders) or Part 14 (applications in adoption, placement and related proceedings) of these rules apply;
(c) relating to the exercise of the court’s inherent jurisdiction with respect to children; or
(d) under section 55A of the 1986 Act (declaration of parentage),
and one of the conditions set out in paragraph (3) is satisfied.
1.8 Under paragraph 16.6(3), a child in the above proceedings will be able to conduct proceedings without a guardian or litigation friend if either;
(a) the child has obtained the court’s permission; or
(b) a solicitor –
(i) considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and
(ii) has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.
1.9 This rule is subject to paragraph 16.6(2), which states that rule 16.6(1) does not apply where the child is the subject of and a party to proceedings –
(a) which are specified proceedings (see Part2A, paragraph 1.2 of this handout);
or
(b) to which Part 14 (applications in adoption, placement and related proceedings) applies.
1.10 The combination of rule 16.6(1)(b) and rule 16.6(2)(b) means that a child may only conduct adoption or placement proceedings without a guardian or litigation friend if they are not the subject child.
Scenario
Manjit and Wayne met at University and married just after they left Kings College London.
They had two children quickly thereafter, Trey (b) now 15 and Eden (g) now 13.
The parents separated when Trey was 2 and just after Eden was born. Wayne (a successful Jazz musician) had met someone else when Manjit was pregnant with Eden and left two days after Eden’s birth to tour North America.
On his return 9 months later he wanted to resume care of the children and applied for residence. This made Manjit very anxious and she refused any contact between Wayne and the children.
When Eden was 1 ½ year old the Court made an order for supervised contact with a plan for unsupervised contact within ‘6 months.’
Thereafter contact stuttered along due partly to the resistance of Manjit but also due to Wayne’s touring obligations and unsupervised contact did not take place until Eden was 9 years old.
Eventually when Eden was 10 ½ and Trey was 12 ½ contact moved to overnight stays. Trey loves spending time with his Dad.
However after two overnight stays Eden refused to have any contact with her father.
She has adamantly maintained that position. She says that on the second overnight visit Wayne’s friend who is a woman stayed as well and this unsettled her. She says she simply will not see him! Manjit fully supports Eden’s position and will not make Eden available for contact.
Trey (also an excellent Jazz pianist) continues to enjoy excellent contact with his father and has recently been on a 2 week holiday with him.
Proceedings have been extant for the best part of 13 years.
At yet another review hearing the Court appoints a rule 16.4 Guardian.
This is the first time this has happened. You act for Manjit. Wayne has no funds and is assisted by a McKenzie Friend from Families Need Fathers.
Manjit is incredibly anxious and is phoning you at least 4 times a day.
What does the appointment of a 16.4 CG mean?
Re S (Transfer of Residence) [2011] 1 FLR 1789 para 46 HHJ Bellamy: In the light of the considerable body of evidence I have heard and read in this case over the last 3 years, the research literature that has been produced and my experience of dealing with other high conflict cases involving different experts, I am satisfied that Dr Weir’s evidence as to the concept of alienation as a feature of some high conflict parental disputes may today be regarded as being mainstream.
Re H (Children) [2014] EWCA Civ 733 para 44 quoting Parker J: ‘Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this’.
New Cafcass guidance (March 2019) defines as: When a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.
Part 3: The Child Protection process, a brief overview
1.1 The Children Act 1989 imposes various duties on local authorities to promote the welfare of children in their area. The extent of these duties and the action the local authority may take will vary depending on the child’s situation.
1.2 The section provides a brief overview of the following;
a) Section 17 of the Children Act 1989
b) Section 20 agreements
c) Section 47 investigations
d) Child Protection Conferences
e) Emergency protection orders
f) Care proceedings
Section 17 of the Children Act 1989
1.3 Section 17(1) imposes a general duty on every local authority to;
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.
1.4 Whether a child is ‘in need’ is a subjective social work judgement based on the available information. However, this judgement can be subject to judicial review, as per paragraph 33 of Lady Hale’s judgment in R (A) v London Borough of Croydon; R (M) v London Borough of Lambeth [2009] UKSC 8.
1.5 A child that the local authority considers to be in need will often be placed on a child in need plan, requiring cooperation between the local authority and the parents in order to meet the child’s needs. A child may be considered in need for several different reasons including situations where a child has additional needs due to health problems or where the parents are unable to adequately meet the child’s needs.
Section 20 agreements
1.6 Under s20(1) of the Children Act 1989, every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of;
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
1.7 Section 20(1)(c) is often relied on by local authorities to accommodate a child where there are child protection concerns.
1.8 As established by the case of London Borough of Hackney v Williams [2018] UKSC 37, there is no statutory requirement for the local authority to obtain a positive expression of consent from a parent before accommodating a child. However, this is best practice and s20(7) prevents a local authority from providing accommodation to a child where any person with parental responsibility, who is able to provide or arrange accommodation for the child, objects to him being accommodated.
Section 47 investigations
1.9 Section 47 sets out the local authority’s duty to investigate a child’s situation in order to promote their welfare.
1.10 Under s47(1), where a local authority –
(a) are informed that a child who lives, or is found, in their area –
(i) is the subject of an emergency protection order; or
(ii) is in police protection; or
(iii) has contravened a ban imposed by a curfew notice within the meaning of Chapter I of Part I of the Crime and Disorder Act 1998; or
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.
1.11 Pursuant to s47(3), the local authority’s enquiries shall, in particular, be directed towards establishing –
(a) whether the authority should –
(i) make any application to court under this Act;
(ii) exercise any of their other powers under this Act;
(iii) exercise any of their powers under section 11 of the Crime and Disorder Act 1998 (child safety orders); or
(iv) (where the authority is a local authority in Wales) exercise any of their powers under the Social Services and Well-being (Wales) Act 2014;
with respect to the child;
1.12 Section 47 operates in a similar manner to Section 37. Where s47 applies, the local authority should consider applying for an emergency protection order, a care order, a child assessment order or a supervision order. Under section 47(7), if the local authority decide not to apply for any of these orders, they are obliged to;
(a) consider whether it would be appropriate to review the case at a later date; and
(b) if they decide that it would be, determine the date on which that review is to begin.
Child Protection Conference
1.13 Where the local authority has serious concerns about the care the child is receiving, either following a s47 investigation or due to referrals from other agencies, they may hold a child protection conference. This is a multi-agency conference involving social workers, health professionals and education providers, where applicable.
1.14 The outcome of this conference may be that the child is placed on a Child Protection Plan. Similar to a Child in Need Plan, this involves parents working with the local authority. This plan will place obligations on the parents to meet certain requirements as well as setting out the support the local authority will provide.
1.15 Depending on the level of the child protection concerns, the outcome of this conference may also be for social services to seek legal advice regarding whether the child should be removed from the family.
Emergency Protection orders
1.16 Under s44(1), where any person (‘the applicant’) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that –
(a) there is reasonable cause to believe that the child is likely to suffer significant harm if –
(i) he is not removed to accommodation provided by or on behalf of the applicant; or
(ii) he does not remain in the place in which he is then being accommodated;
(b) in the case of an application made by the local authority –
(i) enquiries are being made with respect to the child under section 47(1)(b); and
(ii) those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or
(c) in the case of an application made by an authorised person (any person defined as an authorised person under s31(9))–
(i) the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
(ii) the applicant is making enquiries with respect to the child’s welfare; and
(iii) those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
1.17 Emergency protection orders are temporary orders. They can only be made for an 8-day period (s45(1)) and may only be extended once (s45(6)).
Care proceedings
1.18 The local authority can commence care proceedings by making an application for either a care order or a supervision order (often both). In accordance with s32(1) of the Children Act 1989, once the application has been issued, the court must resolve proceedings within 26 weeks. The 26 week timetable can be extended only if this is necessary to resolve proceedings justly, pursuant to s32(5).
1.19 The object of care proceedings is for the court to determine whether the threshold under s31(2). This section sets out that the court may only make a care order or supervision order if it is satisfied;
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.
1.20 If and only if the court is satisfied that threshold is met, can the court go on to consider what, if any, order should be granted. In making this decision, the court will have regard to the welfare checklist under s1(3) as well as the no order principle under s1(5).
1.21 A supervision order, pursuant to s35, imposes a duty on the local authority to advise, assist and befriend the child. The local authority will provide assistance under this order but also impose obligations on the parents. While a supervision order is in force, the local authority can return the matter to court if the order is not wholly compiled with, pursuant to s35(1)(c)(i).
1.22 The effect of a care order is contained within s33. A care order places the child in the care of the local authority and gives that local authority parental responsibility for him. The child is considered a looked after child and the local authority must take steps to promote the child’s welfare and education while the child is in their care. A care order gives the local authority the power to limit the parents’ ability to exercise their parental responsibility.
1.23 Where the care plan is for adoption, the local authority will apply for a placement order, usually towards the end of care proceedings. This order gives the local authority the power to place the child for adoption without parental consent, pursuant to s18(1) of the Adoption and Children Act 2002.
What happens if a Client is approaches you if they have contact with Social Services.
a) Section 17 of the Children Act 1989
b) Section 20 agreements
c) Section 47 investigations
d) Child Protection Conferences
e) Emergency protection orders
f) Care proceedings
1. E and F – specialist area and non merits non means legal aid.
Court expects private client solicitors to inform clients of legal aid.
2. Nature of interaction otherwise:-
a) intrusive
b) investigative
c) suspicion
d) referral to other organisations, (CP medicals, police)
e) slow decision making,
f) frustrating,
g) sometimes irrational,
h) recorded,
i) management system, Team managers etc may have different views than SWs.
3. Challenge to decision making. Unless specified within statute of instrument its by way of JR.
Part 4: Adoption applications: the adopters’ perspective
1.1 Before prospective adopters can apply for an adoption order to adopt a child, the child must first have lived with them for a period of time.
1.2 The relevant period of time depends on the child’s relationship to the adopters and the circumstances in which the child came to live with the adopters. The different periods of time a child must have lived with a prospective adopter are set out in s42 of the Adoption and Children Act 2002 and illustrated below;
A. The child placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court | 10 weeks |
B. The applicant is a parent of the child | 10 weeks |
C. The applicant (or one of the applicants) is a partner of the child | 6 months |
D. The applicant (or applicants) is a local authority foster carer (where the child isn’t placed for adoption) | 1 year |
E. In any other case | No less than 3 years in a 5 year period (does not need to be continuous) |
1.3 In relation to D and E, the applicants can apply to the court for leave to apply for an adoption order before the child has lived with them for the relevant time period (s42(6) of the Adoption and Children Act 2002).
Placed for adoption by an adoption agency
1.4 An adoption agency will either be a local authority or a voluntary organisation registered as an adoption society under Part 2 of Care Standards Act 2000.
1.5 Under section 18(1) of the Adoption and Children Act 2002, an adoption agency may only place a child for adoption (or where the adoption agency has placed a child with any persons, leave the child with them as prospective adopters) if;
a) The child is over 6 weeks old; and
b) Either;
I. A placement order has been granted; or
II. The adoption agency is satisfied that each parent or guardian of a child has consented to the child being placed for adoption, pursuant to s19 of the Adoption and Children Act 2002
1.6 If the child is less than 6 weeks old, the child can still be placed under a placement order but any consent to placement given by the mother pursuant to s19 will be ineffective (as per Eleanor King J at paragraph 35 of her judgment in Sandwell Metropolitan Borough Council v GC and others [2008] EWHC 2555 (Fam)). The mother of a child who is less than 6 weeks old can still provide written consent to the child being placed with prospective adopters, pursuant to regulation 35(4) of the Adoption Agencies Regulations 2005. However, consent pursuant to s19 of the Adoption and Children 2002 would still need to be obtained before an adoption order could be made.
1.7 This distinction is important because when each parent or guardian of a child consents to the child being placed for adoption under s19(1) of the Adoption and Children Act 2002 it has the following consequences;
a) The parent may only oppose any adoption application with the leave of the court (s47(5));
b) The parent’s ability to apply for a child arrangements order is restricted (s28(1)(a));
c) Parental responsibility is given to the adoption agency (s25(2)) and subsequently the prospective adopters when the child is placed with them (s25(3));
d) The parent’s ability to have contact with the child will be determined by the adoption agency or subject to a court order under s26(2)(b);
e) There are restrictions on a parent’s ability to require removal/return of the child (ss 30–35).
1.8 Where a child has been placed by an adoption agency, particularly where the adoption agency is a local authority, the adoption agency will take over the running of the adoption proceedings. While the prospective adopters must be the ones to make the application, their attendance at hearing will often be excused if their position and the position of the local authority is the same.
Non-agency adoptions
1.9 An adoption must be arranged through an adoption agency unless there is an order of the High Court or Family Court permitting the adoption to be otherwise arranged (s92(1) of the Adoption and Children Act 2002) or at least one the prospective adopters is (pursuant to s92(4));
a) a parent of the child;
b) the partner of a parent of the child;
c) a guardian of the child; or
d) a relative of the child
1.10 Under s44(1) of the Adoption and Children Act 2002, where a child has not been placed by an adoption agency, the adopters must give the local authority notice of their intention to adopt.
1.11 Pursuant to s44(3), this notice of intention must be given no more than 2 years and no less than 3 months before the date of the adoption application.
1.12 In accordance with s44(5) and s44(6), on receipt of the notice, the local authority must arrange an investigation and provide the court with a report addressing, so far as is practicable, the suitability of the adopters and any other matters relevant to Section 1 of the Adoption and Children Act 2002 (similar to the welfare checklist but with additional considerations relating to the effect of adoption on a child).
Making an adoption order
1.13 Section 47 sets out three conditions, one of which needs to be fulfilled before a court can make an adoption order in relation to a child that has a parent or guardian. The first two condition are set out below, the third condition only relates to adoptions in Scotland and Northern Ireland and as such is beyond the scope of this seminar.
1.14 Under 47(2), the first condition is that, in the case of each parent or guardian of the child, the court is satisfied –
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) that the parent’s or guardian’s consent should be dispensed with.
1.15 Section 20 of the Adoption and Children Act 2002, referred to at s47(2)(b), allows a parent or guardian of a child, who consents to the child being placed for adoption by an adoption agency under section 19, to also at the same time (or at any subsequent time) consent to the making of a future adoption order. Note this section only applies where the child is placed by an adoption agency and therefore does not apply to non-agency adoptions.
1.16 Section 47(3) clarifies that a parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave. This entails the parent or guardian applying to the court (often a fairly informal oral or email based application is permitted) for leave to oppose the adoption on the grounds that there has been a change in circumstances since the parent or guardian gave their consent (s47(7)).
1.17 Under s47(4) the second condition is that –
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) either –
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
1.18 Similarly, s47(5) makes clear that a parent or guardian cannot oppose the making of an adoption order under this condition without the court’s leave. Again, the parent or guardian must apply for leave to oppose, demonstrating that there has been a change in circumstances since the they gave their consent or the since the placement order was made (s47(7)).
1.19 The second condition and part b of the first condition only apply where a child has been placed by an adoption agency and therefore are not available to applicants in non-agency adoption cases. Applicants in these cases must therefore either have the parents or guardians consent to the making of an adoption order or must demonstrate to the court that the parent’s or guardian’s consent should be dispensed with.
1.20 Pursuant to s52(1), parental consent can only be dispensed with if the court is satisfied that either;
(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or
(b) the welfare of the child requires the consent to be dispensed with.
1.21 In order for s52(1)(b) to apply, the child’s welfare must require adoption as opposed to another long-term intervention. It has been emphasised through case law that adoption of a child against their parents’ wishes “should only be contemplated as a last resort – when all else fails”, as per Lord Neuberger in Re B (a Child) (FC) [2013] UKSC 33 at paragraph 104.
Highly specialised area,
Have to be very confident to take it on,
If supported by a LA – placed under placement order, costs met by LA.
D above may not be supported by the LA notwithstanding they are LA foster carers! Oddly often happens. They will incur costs.