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1.3.3 Court Practice: Expectations of Legal and Social Work Staff

SCOPE OF THIS CHAPTER

This chapter describes the role of the social care legal team and the role of the social work team in respect of court proceedings and legal responsibilities.

Social work staff are advised to refer to the following documents in respect of their legal responsibilities:

Ministry of Justice Best practice Guide: Preparing for Care and Supervision Orders

Social Work Evidence Template (SWET) – ADCS

Care and Supervision Proceedings and the Public Law Outline (PLO) Procedure

AMENDMENT

This chapter was reviewed in December 2014 and updated as necessary.


Contents

  1. Accessing Legal Advice
  2. The Role of Legal Services in all Proceedings
  3. Role of the Social Work Staff in Respect of Court Work
  4. Legal Planning
  5. Social Worker’s Initial Statement in Care Proceedings
  6. Correspondence During Court Proceedings
  7. The Social Worker at Court


1. Accessing Legal Advice

Team managers and social work practitioners can ask for informal and general advice from the legal section about any case that they have concerns over. The decision to undertake legal proceedings is made by the Decision and Review Panel (DARP). The legal team are usually involved in cases that are being managed using the Public Law Outline (PLO) process or where an application for court proceedings has been agreed via DARP.


2. The Role of Legal Services in all Proceedings

Legal services will:

  1. Provide legal advice;
  2. Draft court applications and liaise with the court;
  3. File and serve the statements for the local authority, care plans, Schedule 2 reports;
  4. Advise on section 37 reports;
  5. Make arrangements for legal representation;
  6. Social care legal staff will represent the LA at all directions hearings, interim care order hearings (ICOs), case management conferences (CMCs), issues resolution hearing (IRHs), contested hearings and final hearings unless agreed that Counsel will cover the hearings, e.g. due to complexity;
  7. In complex and lengthy final hearings, legal assistants will attend court with Counsel to take notes and organise witnesses;
  8. Deal with all correspondence with solicitors during the course of the proceedings;
  9. Email the social worker following each hearing highlighting the dates for filing statements, court hearings and any other key actions;
  10. Forward court orders to the social worker;
  11. Make initial contact with any expert to be instructed to obtain CV, availability, estimate of fees, start date and time scales for proposed assessment;
  12. Where an expert is to be instructed by the local authority, draft letter of instruction in consultation with the social worker and team manager and circulate for approval of other parties.

Where Children’s Social Work Services (CSWS) is supporting an application by another person should be advised to seek independent legal advice e.g. for a Child Arrangements Order, SGO or an adoption order. The social care legal team can advise social work staff but cannot give direct advice to the applicant. It should be noted that the applicant may incur costs. A list of Children’s Panel solicitors is available from legal services.


3. Role of Social Work Staff in Respect of Court Work

The social care legal team usually complete legal applications forms excluding adoption forms.

The role of social work staff in respect of court work is to:

  • Fully brief and instruct staff from the social care legal team and continue to do so for the duration of the case;
  • Inform the legal team of those persons with Parental Responsibility, parents and significant others;
  • Prepare statements, court care plans and social work chronologies in good time to allow for compliance with court directions and required filing dates;
  • Discuss with the legal team appropriate ‘directions’ which should be applied for in proceedings;
  • Attend court to instruct lawyers unless otherwise agreed;
  • Provide necessary evidence in support of any applications to be made to the court.


4. Legal Planning

4.1 Child Protection Conferences

Initial child protection conferences are not usually attended by the social care legal team.

It is good practice to inform parents if and when a local authority solicitor will be in attendance at conference, although this will rarely happen.

4.2 Initiating Legal Proceedings and the Initial Legal Planning Meeting

The Public Law Outline, sets out the framework of action which should be considered by a local authority when considering whether or not to initiate proceedings for a care or supervision order (see Pre-Proceedings Public Law Outline Flowchart).

DARP approval is required to initiate PLO or care proceedings. In an emergency, the area HoS can give approval to proceed and the case will be discussed at DARP retrospectively.

Subsequent to DARP approval a discussion must take place between the relevant social work team and the social care legal team.

To maximise the effectiveness of the discussion, the social worker, where possible, should make the following documents available to legal beforehand:

DARP will have already considered:

  • The reasons for the concerns and the evidential basis for establishing Significant Harm and the threshold criteria;
  • Why care proceedings are necessary, the aim, objective and purpose and whether the making of an order would be better for the child than making no order at all;
  • The Care Plan for the child which will identify how the child's short term needs will be met and set out any longer term plans;
  • Whether to ask the court to make an interim care or Supervision Order and what ‘directions’ should be sought in relation to assessments.

Other issues to be considered at the discussion should include:

  • Date proceedings to be initiated and/or the timetable for the public law outline (PLO) process;
  • Date by which statements, court care plan and court chronology are required;
  • Date by which interim care plan will be produced;
  • Other tasks to be carried out and who is responsible for them;
  • Dates for completion of any Child and Family Assessments if not yet completed;
  • Specialist assessments needed for proceedings;
  • Need to involve fostering, adoption or any other local authority services.

4.3 Letter Before Proceedings

If the decision of the legal planning meeting is that proceedings should be commenced, the local authority must in accordance with the PLO, immediately notify that decision to the parents and others with Parental Responsibility for the child by a 'letter before proceedings' using language and methods of communication both in writing and orally that will be understood by them. The precedent should be adjusted to fit the particular circumstances of the case and must set out clearly but briefly the LAs concerns in relation to the case. The letter is signed by the social work team manager and must be delivered by hand to the correct address by the social worker.

With the exception of those cases where urgent court action is needed to safeguard the child, the local authority should liaise with the parents and those with parental responsibility to with a view to considering what steps if any can be taken to avoid proceedings. 

The ‘letter before proceedings’ acts as a trigger for non means, non merits tested publicly funded legal advice and assistance for the parent(s) or those with parental responsibility.

In particular the local authority should consider whether the parent or other person with parental responsibility appears to have the capacity to instruct a solicitor or whether the official solicitor should be involved. 

Where any affected child is of sufficient age and level of understanding the intention to initiate care or supervision proceedings must also be explained to him unless to do so would exacerbate any significant harm they are suffering or likely to suffer. If parental consent to this is withheld such information can only be provided after the commencement of proceedings and the Children's Guardian will then have a role to play. CAFCASS should be notified of the prospect of care proceedings at the point that the parents are notified but identifying details of the child should only be disclosed to CAFCASS with the parents' consent.

4.4 Immediate Issue Letter

In some cases, due to the scale, nature and urgency of the local authority's safeguarding concerns, the local authority may consider that it is not in the child's best interest to send the ‘letter before proceedings’ or utilise the pre proceedings PLO process.

In such cases the local authority's application to the court will need to make explicit the reasons for any missing documentation or absent steps.

The local authority will need to consider if it is appropriate to write to the parent(s) to inform them that an application to court is being made and to explain that they should seek legal advice. This type of letter is not intended to be a ‘letter before proceedings’.

In Leeds, the immediate issue letter uses the same format as the ‘letter before proceedings’ but it must make clear that care proceedings are being issued. As before, the letter is signed by the social work team manager and must be delivered by hand to the correct address by the social worker.

There are two important points about sending an ‘immediate issue letter’ to the parent(s):

  • As the letter is not intended as a ‘letter before proceedings’ it may not act as a trigger letter for publicly funded advice and assistance. However, the parent(s) may still be eligible for means tested advice from a solicitor. Parents should be advised to seek further guidance from a solicitor on this point;
  • It will not always be appropriate to send this letter in all cases where immediate issue of proceedings is decided. For example, the local authority may have concerns that if the parent(s) know that the authority is going to apply to court for an order allowing it to remove the child from their care, the Parent(s) may abscond with the child/ren.

4.5 Pre Proceedings Meeting

The aim of the pre proceedings meeting (PPM) is to agree a plan that will safeguard the child and promote their welfare.

Following receipt of the ‘letter before proceedings’, a meeting should take place between the parents (and their legal representatives) and the local authority. The local authority should provide in writing a revised plan for the child/ren setting out what the parents and the local authority are to do to safeguard the child/ren and the steps that the local authority will take if the action is not effective.

There needs to be sufficient time balanced against risks to the child to allow the parent(s) to actually receive the letter, consider it and to seek legal advice when setting the date, time and venue of the PPM. Consideration should be given to re-scheduling when requested by the parent(s) so long as this does not affect the child’s safety and welfare.

The participants of the meeting can include:

  • The child’s social worker;
  • The team manager;
  • The local authority lawyer will normally attend the meeting. If the parent/ carer(s) do not attend with a solicitor or legal representative of their own, then the LA lawyer may not attend either;
  • The solicitor for the parent(s);
  • The parent(s);
  • Family member or person acting in a supportive role for the parent(s) at the authorities discretion;
  • The social work team manager usually acts as chair;
  • Interpreter where appropriate;
  • Official solicitor or litigation friend where appropriate.

The PPM is not a multi disciplinary meeting and it is not appropriate for other agencies to attend. The local authority could consider at this point, with parental consent, the use of the Family Group Conference Service to assist in identifying wider family support if this has not already taken place. However, the child’s welfare is paramount and the parent(s) agreement must be sought.

Setting an agenda will formalise and add structure to the meeting. Minutes of the PPM must be taken and approved by the social work team manager. The minutes, the plan and any agreements made at the PPM must be circulated to the parent(s) within three working days of the pre proceedings meeting by the social worker.

Nothing in the proposed plan should be new or a surprise to the parent(s) as the concerns raised by the authority should have been referred to in previous meetings, case conferences and documentation between the authority and the parent(s).

Parents with Particular Needs

Where a parent lacks the capacity to follow litigation within proceedings, it is also likely that they would find it difficult to understand what is being said and asked of them during any pre proceedings. Lord Justice Wall’s comments have clarified the court’s expectations in this instance:

P v Nottingham City Council and the Official Solicitor (2008) EWCA Civ 462

‘It is, I think, inevitable that in its pre proceedings work with a child’s family, the local authority will gain information about the capacity of the child’s parents. The critical question is what it does with that information, particularly in a case where the social workers form the view that the parent in question may have learning difficulties’

‘At this point, in many cases, the local authority will be working with the child’s parents in an attempt to keep the family together. In my judgement, the practical answer in these circumstances is likely to be that the parent in question should be referred to the local authority’s adult learning disability team (or it’s equivalent) for help and advice. If that team thinks that further investigations are required, it can undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre proceedings letter is written and proceedings are issued, the legal advisers for the parent can be in a position, with public funding, to address the question of a litigation friend. I think, important that judgements on capacity are not made by the social workers from the child protection team’.

‘In the pre proceedings phase local authorities should feel free to do whatever is necessary in social work terms to assist parents who may become protected parties. My view, however, is that this is best achieved by members of the adult learning disabilities team who do not have responsibility for the children concerned’.

Language barriers must also be considered where a parent’s capacity to understand is clearly limited. Arrangements must be made for a suitable independent interpreter to be available and not rely on a family member or friend.

Participation of the Child

Every child, where reasonably practicable and consistent with their welfare, should be notified in age appropriate language that a pre proceedings meeting is to be held. The child’s social worker has an on-going duty to ascertain the wishes and feelings of the child and to act in their best interest. The social worker is well placed to make clear the child’s views at the PPM.

The local authority must decide in each individual case whether to invite the child/ren to the PPM. Factors to take into consideration include:

  • The child’s age;
  • The child’s level of understanding as to what is involved;
  • The child’s coping skills;
  • For the child to be present for all or part of the PPM.

The social worker must inform the chair of the PPM where the child has been invited to the meeting, so that any ‘difficult’ agenda items can be scheduled appropriately. If it is felt inappropriate to invite the child to attend the PPM or the child rejects the invitation, the social worker must consider how the child’s wishes and feelings could be heard at the PPM.

The social worker must ascertain the parent’s views towards the child’s attendance at the meeting. If the parent(s) oppose the child’s attendance at the PPM it must be remembered that the local authority does not have parental responsibility at this stage.

If the parents do not wish the child to attend, the child should be informed about the local authority’s complaints procedure. In these circumstances the social worker should consider other methods of ensuring that the child’s voice is heard. For example:

  • The child making written representations for the PPM;
  • The social worker meeting with the child to explain the plan so that the child’s views can be verbally passed to the PPM;
  • The child being referred to an advocacy service See Advocacy and Independent Visitors Procedure.

If, despite the PPM, the local authority continues to be concerned that the child/ren are suffering or are likely to suffer significant harm, the local authority should commence care proceedings in respect of the child/ren.


5. Social Worker’s Initial Statement in Care Proceedings

In Leeds, the social worker will liaise with legal to discuss the social worker’s initial statement. The social worker must bring the full chronology and all other relevant electronic and paper records with them. Legal will draft the statement which needs to comply with requirements of the PLO. (See Care and Supervision Proceedings and the Public Law Outline (PLO) Procedure).

In addition, the social worker must prepare a succinct social work chronology setting out relevant dates and events.

PLO requires the social worker to make every effort to work with the parent(s) in the care planning process.

The social worker, team manager must sign the interim care plan and the final care plan. The service delivery manager will approve and sign off the final care plan.


6. Correspondence During Court Proceedings

All correspondence received from solicitors during court proceedings must be passed to the legal team to deal with.

Where the legal team solicitor receives correspondence during court proceedings and requires the social worker’s instructions for the reply, the letter will be E mailed to the social worker within two days of its receipt and the social worker must give clear instructions to the legal team within two days.

In relation to any other contentious correspondence, including letters received from an expert received during court proceedings, the social worker must sent the letter to the legal team solicitor as soon as possible, together with instructions for the reply.

Where any correspondence raises issues of potential claims against the local authority, a copy of the correspondence should be sent by the social worker to the local authority’s insurance section as well as the legal team.


7. The Social Worker at Court

7.1 Before Court

For care proceedings, the social worker should:

  • Arrange with the legal team to collect witness bundles prior to the final hearing (and any other major hearing as necessary) so as to be familiar with its layout and content;
  • Ensure that they have read all statements and reports filed in the proceedings;
  • Read through in detail the information, analysis, conclusions and recommendations set out in their statements and/or reports;
  • Ensure that the relevant files are available to take to the court hearing and the necessary permission has been obtained to take them from the office;
  • Check with the legal team the day before the hearing in which court the case is listed and the time of the listing;
  • Check with the legal team whether their attendance at court is required and whether they will have legal representation. (where attendance relates to a Section 7 or Section 37 report, the social worker will generally not have legal representation).

7.2 At Court

At court, the social worker should:

  • Arrive promptly for the hearing and in good time for any pre-hearing negotiations;
  • Have the witness bundle and the relevant social work files;
  • When in the witness box, speak slowly and clearly to the magistrate or judge and refer to the witness bundle or files as necessary.

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