Childcare and Social Services FAQs

This is on a case-by-case basis but we have seen a recent shift to looking at more “open adoptions”.  The Courts are keen to look at whether direct face-to-face or video contact with birth families, including mums, dads and siblings, can continue after a child has been adopted and we are seeing this more readily recommended by social services. This would not usually be recommended at more than 1-2 times per year.

The law currently sets out that whether contact is allowed or not is down to the adoptive family but training and work with adopters now includes a focus on the research that has been completed on the benefits to an adopted child of ongoing contact with their birth family.

Of course, there are some cases where face-to-face contact cannot continue.  In such cases, there is often the opportunity to keep in contact and updated via remote contact e.g. letters.  This is often referred to as “letterbox contact”.

Here at Wilson Browne, our lawyers would be able to represent you at Court which will give you consistency in knowing who will be by your side.

You will have a solicitor allocated to your case and each solicitor is assisted by a paralegal.  They will be your main point of contact.  However, because we have a large team, if you can’t get hold of your main contact then there is always someone who can help.

Our solicitors will often represent you in Court too.  They all have years of experience appearing in the family courts on a range of different issues, so you are in good hands!  Sometimes we will need to instruct a barrister to represent you in Court and we have links to all of the main barristers’ chambers so we have access to many talented and experienced barristers and we can tailor our instruction to your specific needs.

The proceedings can be a stressful time so it can give you peace of mind knowing who will be there for you throughout to represent your wishes and feelings and give you objective and thoughtful legal advice.

This is an Order from the Court that stops (prohibits) someone from completing a certain activity in relation to a child.

Usually, this is issued to a parent and will stop them from exercising part of their parental responsibility, such as removing a child from school or taking a child out of the country. The Court will usually give a timeframe to this (often designed to decide a short-term disagreement) but it can last until the child is 18 in limited cases.

If you need to apply for or have an order made against you during any family or care proceedings, we can help explain what it means for you and your family

A Child Arrangements Order is an order which sets out the arrangements for a child and helps decide where the children will spend their time (live with) and how often they will see each parent (spend time with).

These orders used to be known as Residence Orders (“Custody”) and Contact Orders.

This can arise in divorce or separation or during care proceedings with social services and can be a challenging time which we can support you with.

Most applications are made by parents, however, other people who are involved in a child’s life can also apply.

To have an automatic right to do so you must have parental responsibility for the child.

If you don’t then you require permission from the court to make your application, this might be needed if you are a grandparent or other relative. The court will consider the nature of your relationship with the child and involvement in their life to consider whether you should be granted permission to apply.

We are often contacted by grandparents who want to have contact with their grandchildren which is being refused (or in some cases where they want their grandchildren to live with them if they are worried about the care being given by parents).

If talking about the way forward with parents is not appropriate, then an application for a Child Arrangement Order is sometimes necessary. However, Court permission is required before you can do this (unless you are a grandparent who already has parental responsibility).

In deciding whether permission is to be granted, the Court will consider the nature of the application, the connection between grandchild and grandparent and any risks involved.

The family team at Wilson Browne can advise you as to the best way to proceed to ensure that your grandchild can enjoy spending time with you. If a Court application is necessary, we can advise as to the steps needed and support and represent you through the Court proceedings.

Hair Strand Testing or Hair Follicle Test, usually shortened to HST is a type of test which can test for alcohol and different drug usage as far back as 12 months depending on the length of your hair, however, it is more common to go back for 3 or 6 months. It is done by cutting off a small section of your hair from the root and will leave a small bald patch (which can be the size of a 5 pence piece).

The Court should only order you to do this if there is a concern about your alcohol and/or drug use and it is considered “necessary” information for the case.

If you have been asked to do this, it will usually also mean there may be instructions to you not to cut, bleach or dye your hair for a certain timeframe around the testing. This is because it can interfere with the test results and if you do this the Court can draw what is called “adverse inference”. This means the Court can assume you have done this because you have something to hide. You cannot be forced to give a hair sample but again if the court has asked you to and you do not do it, the court can draw an “adverse inference”.

Depending on your circumstances this may be requested as part of care proceedings, and as your solicitor, we can support you and offer advice on how best to navigate this, including at the time the court is making the decision about whether or not you should have it.

This meeting would be organised by your Social Worker during pre-proceedings and/or care proceedings, to look at the wider family/friend support network. It might be that there are extended family members such as grandparents, aunts/uncles, siblings or friends who are able to support you in looking after the children during any short or long-term difficulties.

It is often considered a really good tool to explore what help you might need and who might be available to give it to you and to work out a plan.

Parental responsibility is a legal concept. A Mother will always have parental responsibility for a child. A Father must meet certain criteria before they can be deemed to have parental responsibility, including being married to the Mother or subsequently marrying the Mother after a child’s birth or being named as Father on the child’s birth certificate.

There are ways in which non-biological parents (step-parents) or other relatives or non-related carers may acquire parental responsibility for a child. This includes application to the Court for a parental responsibility order (only in limited cases) or (more commonly) by the making of other orders such as a Residence Order or Special Guardianship Order in a person’s favour.

Parental Responsibility gives anyone who holds it for a particular child rights and responsibilities for that child. If the Local Authority are starting the PLO process or Court proceedings then any person with parental responsibility must be notified and given an opportunity to participate in those proceedings.

It is important to have a solicitor who can provide you with advice and challenge the Local Authority during the PLO process. The Social Worker will have a solicitor so it is essential that a parent involved in the process also has independent legal advice.

The role of the solicitor is to ensure matters progress fairly, making sure the parents understand what the Local Authority are saying, and why they are saying it and the potential outcomes of the PLO process. They will be able to represent your wishes and feelings and give you objective and thoughtful legal advice.

The costs of the solicitor in the PLO process are covered by the Legal Aid Agency. Parents do not have to pay anything towards the costs. Your solicitor will deal with the Legal Aid Agency. All that the solicitor needs a parent to do is to sign a form (CW1 PL).

The Local Authority may ask a parent to agree for their child to live away from their care on a short-term basis. Equally, a parent may be the one who asks the Local Authority to arrange care for their child for a period of time. If this is done by agreement and not by court order then this is called section 20 (s20) agreement. This may be an arrangement for the child to live with another family member or family friend, with foster carers arranged by the Local Authority, or in a residential placement. The agreement between the parent and Local Authority is for the Local Authority to “accommodate” the child.

This does not give the Local Authority parental responsibility for a child and they will need to seek permission/agreement from the person with parental responsibility on important decision-making for the child.

S20 agreement can be withdrawn by a parent at any time if notice is given (the method of notice giving should be set out in the s20 agreement – there is usually a notice period and requirement for it to be in writing).

A cognitive functioning assessment is a common type of assessment that the Local Authority or the Court may ask a parent to engage with. It is conducted by a psychologist who speaks with a parent and then makes recommendations as to how professionals (meaning the Social Worker, Solicitor and others) should present information to that parent in order to give them the best opportunity of understanding and being able to respond effectively.

It will also tell professionals what special measures might be needed to help the parent participate fully in the court process, including what type of assessments they should have, whether they should have the support of an advocate or intermediary and what help they should get to give their written and oral evidence to the Court.

One of the frequent concerns the Local Authority raises is the excessive use of alcohol by parents and the use of illicit (illegal) drugs. Both alcohol and illicit drugs can impair a parents ability to meet their child’s needs in various ways. In addition, illicit drugs pose a risk not only from their use but also from the criminality associated with them.

This is an individual from CAFCASS (Children and Family Court Advisory and Support Service) who is appointed to promote the best interests of the child and to act on their behalf in care proceedings, or in limited circumstances in complicated Child Arrangements Order cases. They will instruct a solicitor to act on behalf of the child/ren and will usually give instructions to that solicitor about the case they wish to present on the children’s behalf.

The Children’s Guardian will consider all the paperwork in a case, visit and/or speak with the child/ren as well as the parents and the Social Worker and other professionals like schools for example. They will then give instructions to the solicitor for the child.

They should always ensure that the Court is aware of the wishes and feelings of a child. They will take those wishes and feelings into account when making recommendations to the Court via the solicitor but this isn’t the only thing they need to consider and they might not always agree that what the children want is what is best for them.

In some circumstances where a child is considered old enough and mature enough to give instructions to a solicitor without using their Children’s Guardian then the child/ren may be appointed their own solicitor. This will only happen in circumstances where the child is not in agreement with the recommendations of the Guardian about what is best for them.

This is what is known as “separation representation of a child”.

The Public Law Outline (PLO), sometimes called Pre-Court Proceedings, is the process that the Local Authority will start if they have concerns for the welfare of a child and those concerns are significant enough for them to think about taking the matter to Court. The purpose of the process is to try to avoid taking the matter to Court.

The aim is for the process to last for approximately 12 weeks with around three meetings with the Local Authority before the conclusion (initial, mid-way and final). It does not always happen this way and may be a shorter or longer process, with more or less meetings.

At the meetings, the Social Worker (often with their manager) and with a Local Authority lawyer will discuss the concerns that the Local Authority have and what they would like to see happen to satisfy them that those concerns no longer exist or are reducing. The parent should attend and engage in that meeting with their own lawyer.

They will set some action points for things that need to be done, sometimes these will be for the Local Authority to do and sometimes they are things which the parents will need to do.

There will often be assessments and collection of information from organisations such as the police, schools, health etc during this process.

At a final meeting, the Local Authority should tell the parent whether the concerns have reduced and the PLO process can be stepped down, or whether the concerns remain or have grown in which case they may confirm that they intend to start care proceedings.

We can support you throughout this process.

The Social Work Evidence Template is the name given to statements made by a Social Worker on behalf of the Local Authority during care proceedings.

These statements can vary in length and detail, depending on why they have been submitted. The Social Worker will provide a statement at the start of care proceedings and also near the end (their final statement). They do not normally provide statements at other times in the case unless it is in support of an application they are making, or the Court has asked them to do so to address certain issues.

As a parent, you have a right to respond to those statements and are given an opportunity to file an initial and final statement and can request the right to file additional statements to address certain issues if required.

An Interim Care Order is an order that the Court can make either on application by the Local Authority or in limited cases of its own volition if there are significant concerns about the welfare of a child/ren.

The effect is to grant the Local Authority parental responsibility for the child so that they can make day-to-day decisions for them, such as where and with whom they live, where they go to school, and arranging medical appointments. The order will normally last for the duration of the court proceedings unless it is discharged or replaced by a different order by the Court at any point during the proceedings.

A Court must be satisfied that “there are reasonable grounds to believe that a child is at risk of suffering significant harm attributable to the care given to them by the parents OR that the child is beyond parental control”. This is known as the “threshold” test. If the threshold is met the Court then needs to consider whether it is in the child’s best interests to make an interim care order based on the interim care plan of the Local Authority. This document will set out what the Local Authority plan is for the child IF they are given an ICO.

It is not a final order. An ICO is made either at the start or during proceedings and will be reviewed at the conclusion of the case after the collection of evidence and assessments have been completed.

Section 47 of the Children Act 1989 places a duty on every Local Authority to make enquiries (i.e. to investigate) the circumstances around the care given to a child if they have reasonable cause to suspect that the child is suffering or is at risk of suffering harm.

The purpose of this is for the Local Authority to gather the information needed to help them decide whether they need to use any of their powers to intervene in the care given to a child. This may be by way of making an application to the Court for an Interim Care Order or starting any pre-proceedings processes (i.e. PLO, Child In Need or Child Protection). Indeed, the outcome may be that they decide they do not need to take any further action.

If a Local Authority wishes to apply to the Court for a public law order (this is an umbrella term for an Interim Care Order/Care Order/Interim Supervision Order/Supervision Order) it must first satisfy the Court that the “threshold” is met.

It is the first thing a Court will consider. If the threshold is not met the Court does not have the power to make a public law order.

The law around the threshold is found in either section 38(2) of the Children Act 1989 (interim) or section 31(2) of the Children Act 1989 (final).

The law says in section 31(2):

The Court must first be satisfied # that a child is suffering or is likely to suffer significant harm. Secondly, the Court must be satisfied that the harm or likelihood of harm is attributable (i.e. caused) by either of the following;

• the care given to the child (or likely to be given to the child) if no order is made being less than what it would be reasonable to expect a parent to give to them;
• the child is beyond parental control (i.e. the parents are not able to prevent the child from placing themselves at risk of harm).

At an interim stage (s38(2)) there is one significant difference to the law above and that is the inclusion of the words  “there are reasonable grounds to believe”. This is because at an interim stage the Court may not be presented with all the evidence and the parents have not had a right of reply.

Public Law – This is often used to refer to the work of the Family Court in which the Local Authority is leading the action (i.e. the Local Authority has made the application “a public body”). This covers applications for care and supervision orders and placement orders.

Private Law – This is often used to refer to the work of the Family Court other than cases where the Local Authority is leading the action. This will normally relate to cases involving disputes between parents of children “private individuals”.

The Local Authority can still be asked to contribute to private law cases if they have involvement with the family, but the case may still remain a private law children matter