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Public law working group: Recommendations to achieve best practice in the child protection and family justice systems

Family Law

As the Public Law Working Group’s Best Practice Guidance (BPG) has been published in March 2021, we thought it would be helpful to provide a quick overview setting out the key points. It’s rather long (at 191 pages) so we’ve prepared a snapshot of the key points which we hope you will find helpful.

The full document can be found here:
https://www.judiciary.uk/wp-content/uploads/2021/03/March-20...

May I encourage everyone to look out for training on the new Guidance over the coming weeks and months. Training will be provided by various organisations, including the Family Law Bar Association. Our own Cambridgeshire Local Family Justice Board/Fenners Training on the BPG and implementation locally will take place by webinar on 16 June 2021. If you would like to register to attend, please contact our clerks who will send you the registration link once available.

IntroductionThe BPG recognises that public sector budgets have reduced significantly over the last ten years. Initial referrals to children’s services have increased by 22% and the number of children subject to a child protection plan have increased by 87%. The situation in public law is further exacerbated by the 23% increase in private law demand since 2014.

It is acknowledged that there are different practices across the country for a variety of reasons and approaches that work in one local authority area may differ in another.

It will no doubt be reassuring to many of us working locally that a number of the recommendations are already part of established working practices. The BPG seeks to achieve a greater uniformity of approach without standardising child protection processes.

We are reminded that the welfare of the child is paramount and that the BPG are, of course, subject to the legislative provisions and statutory guidance. The aims are to ease the burden and pressures of all involved in the family justice system and to ensure, wherever possible, that children are safely raised within their family network.

Focus on well-being remains, although some practitioners may feel a raft of new templates do not particularly assist us in that area however we are assured that those areas of the county piloted thought the same way but now feel the benefits – fingers crossed!
Headlines

47 core recommendations + 15 longer term recommendations
Child’s lived experience and the voice of the child must be central to our work
A continuing focus on well-being of those involved in the family justice system
Renewed emphasis on initiating work at the pre-proceedings stage and early enough to be effective in addressing the harm identified
New C110a application form is being developed and pending the online roll-out, a new “information form” is introduced where an urgent hearing is sought
New templates for letters before action, section 20 agreements, case summaries, position statements and advocates’ meeting agendas
Final hearings not to be listed until IRH when issues are clarified unless there are, unusually, cogent reasons in a particular case for departing from this practice
Further sub-group to consider supervision orders
Care orders at home only appropriate in exceptional cases

PUBLIC LAW PROCEEDINGS
Issuing

C110a is to be amended and rolled out online
In the meantime, separate “information form” for urgent cases (Appendix F3)
Threshold findings to be included in c110a using concise numbered paragraph form
CAFCASS to be notified – not just on issue – but at point where the local authority decide they will be issuing proceedings

Urgent hearings

A reminder to all practitioners that urgent hearings are of limited use because parents will not have had the opportunity to take legal advice. The children’s guardian may not have had the opportunity to make enquiries and so the BPG questions the point of an early hearing in those circumstances. We have to ask ourselves what could realistically be achieved? A reminder, therefore, that urgent hearings will be listed in exceptional circumstances.

Parents to be advised, except in extremis and where it is unsafe to do so, of the proposed care plan.

When a local authority is going to issue at birth, a reminder that the application and supporting documents should be drafted in advance to prevent avoidable delay in the issue of proceedings.
26-week statutory limit

The 26-week time limit should apply to newborn babies wherever possible. Emphasis on the importance of working with health services with respect to newborn babies.

There is a recognition that is some cases where parents are receiving treatment for drug and alcohol use, or young first-time parents who are in mother and baby placements, proceedings may need to be extended.
Initial social worker’s statement

With urgent cases, the initial statement must set out the evidence of urgency and why the legal test for removal is met. A separate short statement is recommended for urgent cases with the full SWET to be completed and filed by the Case Management Hearing.
SWET (Social Work Evidence Template)

The SWET must contain details of pre-proceedings assessments with associated analysis and set out the support that has been provided to the child/family.

If the case was closed in the past to children’s services, the statement should explain why the case was closed. The statement should also include whether the Family Group Conference (FGC) has taken place, whether there were any previous proceedings and whether the child is, or was, accommodated under section 20. The statement must include the view of the Independent Reviewing Officer (IRO) which should be provided by the IRO directly. We often now see an email from the IRO included with the statement. The SWET template is to be revised and the new version is awaited.
Standard directions

Revised standard directions on issue to be introduced with the aim of making orders more accessible for all.
Interim care plans

A short-form interim care plan should be limited to the issues relevant to interim planning which include where the child shall live, proposed contact, any change to the school/nursery and the services to be provided to the child and family. The final care plan will remain in its current form, it is recognised that for children in the care of the local authority, the final care plan is the document which will be referred to at each review.
Urgent interim care order (ICO) hearings

If there is an urgent ICO hearing, the BPG encourages the making of case management directions that can progress the proceedings at the earliest opportunity, without any prejudice to the respondents. Issues should be identified at this stage and disclosure sought accordingly (police disclosure is an obvious example). The local authority shall commence assessments and if family members are identified and proposed as alternative carers, viability assessments should be undertaken without delay.
Case management hearings (CMH)/first hearings

At the first hearing both the identity and whereabouts of the father together with PR status must be addressed and accordingly consideration of whether DNA testing is required. The parties must also consider whether the FGC has taken place or now needs to be convened.

An important point is raised on consideration being given to disclosing limited documents to proposed alternative carers so they can engage with the assessment process on an informed basis. A number of practitioners have raised the importance of extended family members being properly appraised of the risks identified and so I am sure this recommendation will be welcomed.

Immigration issues should also be identified at this early stage. Any uncertainty about a child’s immigration status must be resolved. We are all reminded that failure to do so can have very serious consequences for a child who, at the age of 18 years, may be denied access to further education etc.
Advocates’ meetings

Templates for the advocates’ meeting agendas are included in the BPG (Appendix F4-6). Children’s solicitors in this area already routinely circulate agendas in advance of the meetings. Having looked at the templates, the proposed agenda for the advocates’ meeting prior to IRH is particularly helpful.

If all parties are agreed at the advocates’ meeting, this should be included in the case summary sent to the judge. The case summary will set out the parties’ positions, together with the proposed agreed orders. Again, in my experience, this is current practice in our area.
Orders

The precedent Case Management Order template will continue to be used for first hearings and thereafter the BPG recommends that short-form orders should be used for subsequent hearings – a huge relief for all those who had to regularly draft these lengthy orders! The short-form orders will include an annex detailing matters such as shared costs on expert instruction.

All orders to be drafted and circulated within 24-hours of the hearing. The focus is on all orders being concise and easy to read for all involved.
Part 25 applications/experts

The BPG again reminds us that expert assessment should only be directed when necessary. The report sets out that practice across the county has reverted to independent social workers (ISWs) and psychologists being routinely instructed. The BPG flags up that even when all parties are agreed that the instruction of an expert is appropriate, the court must still scrutinise the application and be satisfied the expert assessment is ‘necessary’ to determination of proceedings.

Helpfully, the BPG reminds us all of the expertise of the social worker and guardian which must be valued and respected. There is however recognition that some additional expertise is going to be required and, in those circumstances, the court may more readily find that the expert evidence is necessary. This includes, but is not limited to, DNA, drugs and alcohol testing and cognitive assessments. On non-accidental injury cases, forensic medical experts reporting on causation are likely to be considered necessary.
Judicial continuity

The BPG stresses the importance of judicial continuity and there should be one, or at most, two identified judges per case.
Case summary and position statement templates

We now have new case summary/position statement templates for all parties. The templates set out headings which each party should cover. These documents should be short and focussed. The templates are found at Appendix H.

The recommendation is that guardians shall file a position statement, rather than an initial analysis, at interim hearings.
Issues resolution hearing (IRH)

For the IRH to be effective, all parties need to have filed final evidence and the parents must attend the hearing. The position on threshold and welfare is to be crystallised.

The court shall determine any application for an expert to give oral evidence. The court shall determine which witnesses are to be called, time estimates for each witness and fix a final hearing date.
Fact-finding hearings

A fact-finding hearing should only deal with those issues which inform the ultimate welfare outcome for the child. It should be rare for more than six issues to be relevant. The guardian will be excused from fact-finding hearings
How many hearings?

Perhaps not surprisingly given the pressures on the family courts, the BPG finds there are too many hearings. Practitioners are required to consider consensual and court-approved applications which could be dealt with by a judge on paper or by email application.
Remote hearings

The BPG recommends consideration should be given to the greater use of video or telephone hearings following on from learning and experience during lockdown.
Bundles

FPR 2010, PD 27A must continue to be complied with. There is a shift in focus to what are the issues and the evidence required to prove or contest the same.

The parties should consider the principal issues necessary to resolve the proceedings, the relevant issues in dispute and the reading list for the judge. A clear route to navigate the bundle is essential. With electronic bundles, my own view is the bundle must be hyperlinked to assist the court.

Child’s birth certificate
The child’s birth certificate is to be included in the bundle and this reflects current practice in our area. I am sure we would all agree that including the child’s birth certificate is useful for clarity on names/spellings/PR and also prevents any delay if a placement application is subsequently lodged.

If the child is a foreign national, a copy of the biocentric page of their passport or ID document should be included in the bundle.
Supervision Orders

A further sub-group has been set up to consider supervision orders in more depth. It seems there a desire to give teeth to supervision orders and it will be interesting to follow how this develops. The BPG acknowledges that views on supervision orders are mixed:

‘224. There is however a broad consensus that the supervision order needs strengthening and that the order should continue to be an option but within a more robust framework.’
Care Orders at home

The BPG sets out serious concerns about care orders at home which are summarised as follows:

Care orders should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings, we should consider instead child protection or child in need.
A care order comes with the intrusive effect of state intervention with ongoing mandatory statutory interference in the lives of the parents and child who will remain looked-after. This means the child will continue to have an allocated social worker, child in care reviews etc. Parties should consider if a supervision order would be more appropriate.
There should be exceptional reasons for a court to make a care order on the basis of a plan for a child to remain in the care of their parents.

Special Guardianship

There is a standalone report from the Public Law Working Group on Special Guardianship published on 15 June 2020 and the link is provided below:
https://www.judiciary.uk/wp-content/uploads/2020/06/PLWG-SGO...

For a summary prepared by Fenners Chambers, please see:
https://fennerschambers.com/public-law-working-group-publish...

In addition, the LFJB and Fenners chambers delivered a webinar on Special Guardianship on 28 January 2021 – please enquire with our clerks if you would like to be sent a copy.
Section 20

Firstly there is a recognition that the case of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 2 WLR 713 has influenced decision-making around the appropriate use of section 20 placements.

The BPG recognises that section 20 is extremely broad in its application and range which covers orphans, abandoned or relinquished babies, unaccompanied refugee children, children with disabilities, adolescents with behavioural problems and homeless 16 and 17-year olds.

There is a new template for section 20 agreements introduced (Appendix G). There is no time limit on section 20 placements, but the purpose and duration shall be agreed at the outset and regularly reviewed. The focus is on independent legal advice for the parents and a regular review of the child’s progress in placement.

The separation of a newborn or young baby from its parents is scarcely appropriate under section 20.
Parents must understand that they can withdraw their consent at any time and such consent must not be given under duress (whether disguised or otherwise). The giving of consent is a positive act; silence, lack of objection or acquiescence is not valid consent.

Generally, longer-term provision of accommodation can be reviewed in line with looked-after children reviews, but short-term provision of accommodation may require more frequent reviews.

We are reminded that section 20 can also be legitimately used for respite, assessment/therapy/detoxification. As well as short periods of time to improve home conditions or for medical intervention e.g. surgery. Section 20 can include residential school and unaccompanied minors seeking asylum.
Deprivation of Liberty Safeguards (DOLS)

DOLS placements are where the child is subject to ‘continuous supervision and control and lack of freedom to leave’ continue to require specific court authorisation. The law on whether a parent can consent under section 20 continues to develop.
Pre-Proceedings

There is significant emphasis in the BPG on the steps local authorities take before issuing proceedings with an in-depth examination of all steps taken. From the very beginning of legal intervention, the legal planning meetings (when legal advice is obtained) are addressed including who should be present. Templates are provided for the letter before action and pre-proceedings meetings (Appendix E2-3).

It is unusual for the pre-proceedings period to be longer than 16 weeks and must be reviewed at six to eight weeks or the half-way point. Consideration should be given as to whether a parent needs an advocate or an interpreter.

There is an emphasis on the importance of keeping accurate records. Those records will set out what assessments have taken place and on the basis of what information, the assessment outcome together with what support and interventions offered to family, and the importance of regular reviews.

As we know, identifying and assessing family and friends at an early stage is key. The BPG acknowledges the importance for parents to have legal advice from an early stage. In fact, there is a recommendation that the legal aid agency consider extending non-means and non-merits tested legal aid available to parents pre-proceedings to enable their full participation and avoid public law proceedings. The template for the letter before action should be used and is drafted to ensure correspondence to parents avoids legal jargon (Appendix E3).

The BPG envisages full exploration by the local authority of what can be done to avoid court proceedings. It is acknowledged that where there is:

non-engagement or engagement but risks persist
the impact of the identified concerns has worsened
the child’s safety demands it when risks cannot be managed with child remaining in the parent’s care

It is highly likely that the matter will need to be put before the court.
FAMILY JUSTICE YOUNG PEOPLE’S BOARD (FJYPB)

Top tips are provided for working with children and young people and this is recommended reading this for all of us working in children law as it is really informative from the child’s perspective. The tips include how to work with brothers and sisters and children who have been affected by domestic abuse.

The focus of our work must be on the lived experience of the child and we must all ensure the child’s voice is heard throughout.

Eve Chowdhury
Barrister