LexisPSL Local Government in partnership with Joy Hopkinson of London Borough of Lambeth Council explains the pre-proceeding process under the Public Law Outline (PLO) reforms to care proceedings.
Public law outline
The pre-proceedings process was introduced in 2008 as the part of the Public Law Outline (PLO) reforms to care proceedings. It has been revised by the Public Law Outline 2014 and the Children and Families Act 2014, and there is now a 26-week time limit for the completion of care and supervision proceedings This places an increased emphasis on pre-proceedings work.
In the View from the President’s Chambers: The Process of Reform: the revised PLO and the Local Authority’ , The President of the Family Division, Sir James Munby, stated:
'Work done by the local authority in the period pre-proceedings—front loading—is vital for two quite different reasons. Often it can divert a case along a route which avoids the need for proceedings. When that is not possible, and proceedings have to be commenced, work done beforehand will pay rich dividends later on. A case presented in proper shape on Day 1 will proceed much more quickly and smoothly than a case which reaches the court in an unsatisfactory state.'
For the pre proceedings process to be effective, he recommended that:
- local authority lawyers are involved at an early stage in advising and assisting their social work clients
- a properly organised legal planning meeting is invaluable and is the key to achieving timely outcomes to care proceedings
- the employment of a local authority case manager is vital (used in the Tri-borough Care Proceedings Pilot and others)
He further identified two key features that had a direct and crucial bearing on the future running of the care proceedings:
- letter before proceedings being sent to the parents which will trigger free legal aid for them to be represented by solicitors, see Practice Note: Public funding in care proceedings
- identification and assessment of family members as potential alternative placement for the children at an earlier stage:
Referral to Children Services
Upon receipt of a referral, a social worker (social worker) has 24 hours to determine what action is required (Working together to safeguard children (chapter 1). The outcome can be:
- no further action
- child[ren] needs immediate protection under police protection or under an emergency protection order (EPO) (ChA 1989, s 44, 46)
- assessment (section 17 of the Children Act 1989 Act (ChA 1989)
- investigate under ChA 1989, s 47 if there are safeguarding issues
- accommodate under ChA 1989, s 20
- any such other specialist assessments eg if child is disabled
Unless the social worker decides that no further action is required, the local authority must then commence an in depth assessment, which must be completed within 45 working days of receipt of the referral. This type of assessment is still often referred to as a core assessment , although the 2015 Guidance states that there is no longer a requirement for a separate initial assessment and core assessment, as this will encourage a more fluid assessment process with continuity and consistency for the family. It is a matter for local authorities to determine their own local assessment processes and terminology within their local protocols.,
The social worker can undertake an assessment to determine if this is a child in need within the area. Defined by ChA 1989, s17(10) as a child who is
'unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority. (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled'
There is a general duty on every local authority to safeguard and promote the welfare of children in their area who may be in need and so far as possible to promote the upbringing of the child within their family. See Practice Note: Children in need—provision of services.
If a referral discloses an immediate risk of significant harm to the child, the police can place a child in police protection under ChA 1989, s 46 or the local authority can apply for an EPO under ChA 1989, s44. A strategy discussion must take place between the social work team, the police and other relevant professionals to discuss next steps and agrees actions and time scales. This will include the need to commence a ChA 1989, s 47. See Practice Note: Public children—principle of significant harm.
The local authority’s duty to investigate arises where it is informed that there is a child in their area under police protection or subject to the EPO or they 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 local authority must act by making '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'.
If the local authority is denied access to the child or information as to the child’s whereabouts, the local authority shall apply to the court for an EPO or such other order unless it is satisfied that the child’s welfare can be safeguarded without such action. See Practice Notes: Emergency prohibited steps and child arrangements orders and Public children—emergency protection orders.
The social worker will speak to the child[ren] and family members and any professionals or agencies known to the family. If the referral relates to a criminal offence, the social worker will be alert to achieving best evidence (ABE) procedures in respect of speaking to the child about the incident(s) and will liaise with the police.
At the conclusion of the ChA 1989, s 47 investigation, the local authority can decide
- no further action, or
- provide services as a child in need under ChA 1989, s17
- refer for a legal planning meeting for legal advice (see below)
- refer the family for a child protection conference. The initial child protection conference must be convened within 15 working days of the decision to commence the ChA 1989, s 47 investigation. See Practice Note: Child protection conferences
Legal planning meetings
Legal planning meetings are held when the social work client requires advice as to whether the ‘threshold criteria’ for a ChA 1989, s 31 have been met.
The social worker, team manager and lawyer will consider the care plan, risks to the child and harm suffered, assessments, gaps in evidence, parents capacity to engage in litigation and the family and friends network etc and decide:
- further work required
- threshold criteria is not met
- threshold is met and care proceedings must be filed
- threshold is met but there are interim measures in place to safeguard the child[ren] while parents are given one last opportunity to engage under pre-proceedings PLO
If a decision is made to issue care proceedings, then an immediate issue letter should be sent to the parents by the social worker.
If a decision is made to manage the case under the pre-proceedings, then a letter before proceedings should be sent to the parents by the social worker. A list of local solicitors should be attached to the letters.
The starting date for pre-proceedings is the date of the decision at legal planning/gateway.
Management of case under Pre-proceedings process
Letter before Proceedings
The social worker is responsible for completing the letter before proceedings using the templates in Annex B of the statutory guidance. Court orders and pre-proceedings—March 2015.
The letter before proceedings must be sent to a parent(s) and any other person with parental responsibility for the child inviting them to attend a pre-proceedings meeting with the social worker. The letter must be:
- a summary in simple language of the local authority’s concerns
- a summary of what support has already been provided to the parents
- what parents need to do and what support will be provided for them, to avoid proceedings, including time scales
- information on how to obtain legal advice and advocacy and make clear how important it is for the parent to seek legal representation
The parents must take this letter to solicitors as they will be entitled to non-means-tested legal aid representation and advice for the pre-proceedings process, see Practice Note: Public funding in care proceedings. Good practice provides that a parent should have up to ten working days’ notice of a pre-proceedings meeting.
It is also advisable to attach with the letter a separate pre-proceedings plan setting out clear expectations of the parents and of the local authority so that the parents’ solicitors can advise them on the plan ahead of the pre-proceedings meeting.
Preparation for the pre-proceedings meeting
To ensure that the pre-proceedings meeting is effective the local authority lawyer should prepare and send the following information to the parents solicitors for them to consider and advise their client ahead of the pre-proceedings meeting:
- experts CVs, time scales for assessments and draft letters of instructions
- evidence the local authority is relying on, any social worker documents, police reports etc
- details of support services/agencies that the parents need to engage with as part of the pre-proceedings process
The pre-proceedings meeting is chaired by a team manager and attended by:
- the parents(s)
- any person with parental responsibility
- their solicitor
- social worker
The LA lawyer is not required to attend but will often do so if the parents attend with their own solicitors. If the social worker requires legal advice during the PPM, the LA lawyer will be provide such advice away from the PPM.
A child may attend a PPM if they are of an age and have capacity to contribute to the pre-proceedings process. They are not entitled to free legal advice so the LA needs to identify support or Advocate for that child.
During the PPM provides that during the meeting, the attendees should:
- agree and sign a pre-proceedings/working together plan
- specify what assessments and services the parents need to engage in and time scales
- identify family members’ details for a FGC or family meeting
- set down dates for review and conclusion of the PLO process
- clearly outline what steps the local authority will take at the end of the process depending on the progress or otherwise of the plan
- set out what support the local authority will provide to the family
There is a helpful checklist for the agenda for a pre-planning meeting in Best Practice Guide—August 2009.
Review of pre-proceedings
To minimise drift under pre-proceedings, there should be a:
- midway review pre-planning meeting—six to eight weeks to consider the progress of the plan and outcome of assessments
- a final pre-planning meeting—12–16 weeks
- review legal planning meetings between the local authority lawyer and client to discuss the impact of assessments on the threshold criteria, parallel planning, any developments influencing the care plan
These time scales are subject to the needs of the child and the progress by the parents and therefore pre-proceedings can be concluded sooner.
Under the pre-proceedings process, the local authority must actively consider family and friends because if a child[ren] cannot remain in the care of this parents, the local authority has a duty to consider in the first instance placement with other family members and friends.
Local authorities will use family meetings or family group conferences (FGC) to include family members in the decision making and to identify alternative family carers and support. FGC’s are a voluntary process for family members to attend a meeting and agree a family plan for supporting the parent(s) and child[ren]. The meeting is normally organised by a FGC coordinator who is independent of the local authority.
Where preliminary assessments of family members are positive, the local authority will normally complete a special guardianship assessment or a connected persons/Kinship assessment, if the child is looked after.
Conclusion of the pre-proceedings process
The outcome will either be:
- the parent[s] are meeting the needs of their child[ren]. The PLO is stepped down, or
- the parents have not made meaningful changes so the local authority will be issuing care proceedings. The PLO process should have narrowed down the issues to be litigated on during the care proceedings
- if positive assessment of family members and the parents do not oppose their child[ren] being placed with that family member; they can then make their own application for a special guardianship order or a child arrangement order for residence. See Practice Notes: Special guardianship and Procedure—special guardianship applications
Commencing care proceedings
Once the decision has been made to commence care proceeding, a Letter of issue must be sent to the parents and their solicitors. It informs them that the local authority is applying to court for a care or supervision order. It should follow the template in Annex B of the guidance. See Practice notes: Public children—threshold criteria and How to draft a local authority threshold document in care proceedings.
Court orders and pre-proceedings—for local authorities, Annex B
Family Procedure Rules 2010—Practice Direction 12A
Preparation for issuing care proceedings
Guidance on how applications for care proceedings should be conducted is set out in Practice Direction 12A of the Family Procedure Rules 2010.
In preparation for issuing care proceedings the local authority lawyer must consider the pre-proceedings checklist with the social work client and ensure the care plan is supported by:
- robust and up to date assessments
- family members have been identified and assessed. If not, the are time scales for completing this work without delay
- statements are evidence based with comprehensive analysis
- chronology has key dates/incidents from past two years unless relying upon earlier incidents in evidence
- a genogram
- all relevant social work reports, records and decisions that local authority is relying on are available
The social worker evidence template was introduced in 2014 as a standardised format for all social worker statements to be used nationally. It includes sections for the care plan and chronology so there is no need for a separate initial care plans or chronology. The social worker evidence template has not been enforced as yet nationally and there are regional variations in its use.
Issuing an application for care order
On day one, the local authority lawyer must file with their application form, a social statement, genogram, chronology, and care plan (if using social worker evidence template do not need separate care plan and chronology) and index of the checklist documents and current assessment of the child. The local authority does not need to serve any documentation that is more than two years old unless it is relying upon it in support of their application.
On day two, the local authority lawyer must serve on the parties the documents above and the copies of the actual checklist documents that the local authority is relying upon in support of its application and notice of the hearing.
This article – written in partnership with Joy Hopkinson of London Borough of Lambeth Council – was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.