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Legal Aid for Care Proceedings

If you are a parent of the children involved in the care proceedings, then you will be automatically entitled to non-means and non-merits tested Legal Aid for the duration of the proceedings. This means that Legal Aid is available to you regardless of your financial position or your prospects of success.

If you are another person (for example a grandparent or family member) who has parental responsibility for the children (through a child arrangements order or special guardianship order), then you will be automatically entitled to non-means and non-merits tested Legal Aid too.
 
If you are another joined party or you have been invited to intervene in care proceedings then legal aid may be available to you, but this would depend on an assessment of the “merits”, this means why you need legal aid and what your prospects of success are, and you have to be financially eligible. A full application would need to be made to the Legal Aid Agency, and you would need to provide evidence of your finances.
 
Legal Aid is not automatically available for freestanding placement applications or adoption proceedings. Instead this is subject to a means and merits test as outlined above.
 
 

Care Proceedings

Local authorities have a duty to safeguard and promote the welfare of children within their area who are “in need” and to promote the upbringing of the children within their families by providing a range of services appropriate to the children’s needs. Therefore if the Local Authority have concerns about children living in their area, they must take action to protect the safety and welfare of that child and support the family as much as possible. The Local Authority therefore have a duty to work with a family to offer support and assistance either under the Child In Need framework, which may include other professionals involved with the children and family such as school, health visitors etc., a Child Protection Plan or the Public Law Outline.
 
If the concerns are very serious, and support offered has not improved the situation, the Local Authority may decide that they need to remove the children from the care of their parents, sometimes temporarily, whilst assessments are carried out to see if changes can be made. The only way that a Local Authority can do this is by applying to Court for an Order in care proceedings.
 
The Local Authority may ask that parents consider agreeing to them temporarily accommodating children whilst they continue to assess the situation or apply to court for (interim) care orders. They sometimes do this by asking a parent to sign a section 20 agreement. This is an agreement under the Children Act that allows parents to voluntarily agree that their children are accommodated by the Local Authority either in foster care, a residential unit or with another family member who has been assessed as suitable to care for the children by the Local Authority. Before any section 20 agreement is signed it is necessary for parents to have taken legal advice to ensure that they understand the implications of this. A section 20 agreement is a voluntary agreement and every person with parental responsibility for the children needs to agree. It can be withdrawn at any time by a person with parental responsibility. It is only ever intended to be a temporary agreement.
 
There are a range of Orders that a Local Authority can seek in respect of children.

Emergency Protection Orders (EPO) – Section 44 Children Act 1989
The Local Authority would make an application to Court for an emergency protection order (EPO) where they believe that there is an immediate danger to the child and it is considered necessary that steps need to be taken urgently to protect that child.
 
The court will only make the order if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if the child is not removed to accommodation provided by the local authority or the child does not remain in the place where the child is currently being accommodated.
 
The court will only make an order if it considers that doing so would be better for the child than not making an order.
 
In exceptional circumstances these orders can be obtained from the court by the local authority without notice to the parents/carers of the child. An example of such an exceptional circumstance would be where there is evidence of danger to the child if notice were to be given to the parents.
An emergency protection order is only a short order granted for up to a maximum of 8 days. The order gives parental responsibility to the Local Authority but only permits the Local Authority to take action that is reasonably required to safeguard the welfare of the child. If longer term plans are required for the child then an application for another order within the 8-day period must be made. These applications are made “on notice” and give all parties time to consult solicitors and prepare for the court hearing.
 

Care Order

 
A care order gives the Local Authority shared parental responsibility for the child. Parents will still have their parental responsibility, but the Local Authority has power to determine to what extent the parents may exercise this. 

Sometimes children who are the subject of care orders will remain at home being cared for by their parents, however it is more usual for children who are the subject of care orders to live with foster carers or in residential homes.

The Local Authority have a duty to promote contact between parents and children subject to care orders. If the local authority want to suspend or stop contact for a period longer than 7 days they need to obtain a court order to do so. If there is a dispute between the local authority and parents about contact, either party can seek a court order to define contact.

The Local Authority must have grounds for making an application for a care order. These grounds are known as the Threshold Criteria. They must prove to the Court on the balance of probabilities (51% likelihood):
 
1. That the child concerned is suffering, or is likely to suffer, significant harm and;

2. That the harm, or likelihood of harm, is attributable to:
a)  The care given to the child, or likely to be given to the child (If the Order is not made,) is below a standard it would be reasonable to expect a parent to give, or
b)  The child being beyond parental control.
 
The Court will appoint a Children’s Guardian whose role it is to be the voice of the child in the proceedings. The Guardian does not work for the Local Authority applying to the Court for the order. Instead they work for the Children and Family Court Advisory and Support Service (CAFCASS) and work for the Court. Their role is to safeguard the interests of the child. The duties of a Guardian include instructing a solicitor on behalf of the child and preparing a report with recommendations about what is best for child. The Guardian’s paramount consideration is the need to safeguard and promote the best interests of the child.
 
The Court must draw up a timetable to deal with the application. Often this involves making an interim care order, with an order for further assessments of the family circumstances. This can involve assessments of the parent’s ability, psychological assessments, medical assessments, drug and alcohol testing, assessment of other family members to see whether they can care for the child etc. Parents will have an opportunity to respond to the issues raised by the Local Authority by way of a statement, and also to introduce evidence from support services they are engaged with. Parents must also provide information to the Court and the Local Authority about anyone that they want to be considered as an alternative carer for the children e.g. a family member of close family friend. The Local Authority have to assess such persons so the information is required as soon as possible to allow such assessment to get underway. The Court must deal with the proceedings within a 26 week time frame unless there are exceptional circumstances which mean that longer time is needed to suitability assess the range of options for the child’s long term care. The Court must be satisfied that an extension beyond 26 weeks is in the child’s best interests.
 
Before making any order, the Court has to ask itself whether an order would be better for the welfare of the child, or whether it is better to make no order at all.
 
Before making a court order, the Court must consider the arrangements proposed for contact between the child and parents and other specified persons. There is a presumption that there will be contact, unless the welfare of the child says otherwise.
 
Supervision Orders – section 31 Children Act 1989
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm. These orders do not give parental responsibility to the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
 
1. Advise, assist and befriend the child;
2. Take steps that are reasonably necessary to give support the child;
3. Where the order is not complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
 
 
A supervision order may require the supervised child to comply with directions given by the Local Authority to do things such as:
 
1. Live at a place specified by the Local Authority;
2. Present themselves to specific people at specific places or times e.g. to meet with the social worker;
3. To participate in activities specified on certain days.
 
A supervision order can also require the child to submit to a medical or psychiatric examination as directed by the Local Authority. This requirement will only be included where the court is satisfied that such examination is indeed necessary.
 
Initially, a supervision order lasts for 1 year. The Local Authority can apply to the court to extend the supervision order, but the supervision order can only be in place for a maximum of three years.

In contrast to a care order, during the life of the supervision order the child is usually living at home with the parents who retain parental responsibility.
 

Interim Removal

 
Even if the Court makes a care or supervision order, this does not automatically give the Local Authority the right to remove them from their parents care. Instead the Court has to be satisfied that the test for interim removal is met. This is only the case where the Court is convinced that the children are at immediate risk of suffering, or continuing to suffer, significant harm if they remained in their parents care.
 
Which Order?
Where there is an application for a care order, the Court can make a supervision order instead. Similarly, on an application for a supervision order, the Court can make a care order. The Court must decide which Order, if any, will better serve the child’s welfare. This is known as the paramountcy principle. The paramountcy principle requires that the child’s welfare shall be the Court’s first and foremost consideration in deciding whether or not to make an order and if so, what type of order. The non-intervention principle requires that the Court shall not make any order unless it considers that doing so would be better for the child than making no order at all. Only a Care Order gives parental responsibility to the Local Authority. The Court must assess whether the risk of harm to the child is such that the Local Authority should have additional powers and responsibilities, rather than simply rely on the parental agreement associated with the supervision order. If the balance is equal between a care order and a supervision order, the Court should make the least interventionist approach and make a Supervision Order.
 
Instead of making a care order or a supervision order, the Court may make a Child Arrangements Order instead, for example in favour of a relative.
A care order, unless it is brought to an end earlier, will continue in force until the child reaches 18.
 
No application can be made in respect of an unborn child.
 
No care or supervision order can be made in respect of a child who is already 17 years old so any application for such orders must be made before the child’s 17 birthday.
 
 

Care Plan

 
In deciding whether or not an order is the most effective way of promoting a child’s welfare, the court will need full information from the Local Authority as to its plans for the child. This document is the care plan. This sets out the arrangements about where the child will live, what contact they will have with important persons e.g. parents, siblings, other family members, who is responsible for reviewing the plan etc.

Sometimes the Local Authority will have the choice of either returning a child to live with their parent(s) within a strictly limited time framework, or adoption outside the family. Where those are the likely options, the course taken is “Twin Track Planning”. What this means is that the Local Authority makes the plans for either option being selected by the Court, so that when a decision is made by the Court, it may move swiftly.
 
 

Interim Orders

 
On an application for a care or supervision order where the Court directs the Local Authority should investigate the child’s circumstances, the Court may make an interim care or supervision order.
 
The Court must be satisfied that there are reasonable grounds for believing that the threshold criteria are made out.
 
An exclusion order may be part of an interim care order. This is an order that a named person should leave a house in which a child is living, or be prevented from entering a house where the child is living, or to be excluded from an area in which house is located. For such an exclusion order to be made, the Court must find that the threshold criteria are made out and the Court has reasonable cause to believe that if someone is excluded, the child will stop suffering (or stop being at risk of suffering) significant harm and there is someone else living in the house who consents to the exclusion and is able and willing to give the child reasonable care.
 
 

Discharge

 
A care order may be discharged or a supervision order varied or discharged if an application is made by:
 
1. A person with parental responsibility for the child;
2. The child himself/herself;
3. The Local Authority.
 
On discharging a care order, a supervision order may be made instead.
Once a care order has been made it is for the Local Authority to decide whether or not it is reasonably practicable or consistent with a child’s welfare to promote Contact. The expectation is that this should continue undisturbed except where such contact is not in the interests of the child. Normally the Local Authority endeavours to reach a contact agreement which is written down and a copy given to the parties.
 
If as parent is not satisfied with their contact with a child in care, they can apply to the Court and the Court may make such order as it considers appropriate.
 
Similarly the Local Authority or the child can apply to the Court for an order refusing to allow contact between the child and a parent.
 
 


Placement Proceedings & Adoption Proceedings

 
A placement order authorises the local authority to place a child with a prospective adoptive family, usually at the end of care proceedings and before an adoption order is applied for. The placement order permits the child to live with the prospective adoptive family. Placement Orders can be made with or without parental consent, or in certain situations where consent is not needed from the parents.

Parents can give their consent to the making of a placement order basically agreeing that their child should be adopted. If parents do not give consent, the court can order that the parents’ consent is dispensed with when the welfare of the child requires it. In this situation, the court must still consider the impact adoption would have on the child and the effect that would have on their relationship with their birth family together with a number of other matters.

Where the Local Authority say that in order to meet that child’s welfare needs, they need to live outside of their family permanently with an adoptive family, the Local Authority have to make an application for a Placement Order. This is usually done alongside care proceedings so that the application for a placement order can be determined by the Court at the final hearing in the care proceedings. In these circumstances, the Legal Aid granted to parents in care proceedings would cover this as the proceedings are all heard together at a final hearing. However, there are occasions when placement applications are free standing. For example this happens when the care proceedings have ended on a final care order, with either a plan for a rehabilitation to parents care, or placement with a family member and that then does not work out. The Local Authority then can return the matter to Court and ask for a placement order. Legal Aid is not automatically available for parents here and instead is subject to a means and merits test as outlined above.
 
If a placement order is made, the Local Authority will be able to arrange for the child to live with a prospective adoptive family which is referred to as ‘being placed for an adoption’. In this situation, until an adoption order has been made, parents will share parental responsibility for the child with the Local Authority. In this situation, the Local Authority have the ability to limit parent’s decisions about the child. This does not mean that the child is adopted. Instead, the prospective adoptive parents who the child is placed with are then supported by the Local Authority to make an adoption application to the Court at a later date. Parents are given notice of these proceedings. They are separate from care proceedings. Legal Aid is not automatically available for parents here and instead is subject to a means and merits test as outlined above.
 

February 2020
 
 
NOTE: The above is intended as a general overview for your information. It is NOT intended to replace proper legal advice. Each case is different and advice cannot be given without a proper analysis of your own circumstances.

 

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