Public Law Outline


Basic Guidance to Good Practice in Care Proceedings across London

The purpose of this Basic Guidance setting out the recommendations of the Public Law Outline Monitoring Group for London is to simply highlight basic requirements of good practice during the currency of care proceedings.

Introduction

1. The Public Law Outline Monitoring Group set up by the Designated
Family Judge for London comprises members across the disciplines in
care proceedings and makes recommendations to seek to achieve and
maintain consistency of good practice in the carriage of care proceedings
across London.

2. The guide produced by the Ministry of Justice in August 2009 entitled
Preparing for Care and Supervision Proceedings” is a comprehensive
best practice guide for use by all professionals involved with care
proceedings. The guidance issued by the Justices’ Clerks’ Society with
the support of the Magistrates’ Association in November 2009 entitled
Dealing with the Public Law Outline in Family Proceedings Courts” is a
detailed best practice document issued to legal advisers in family
proceedings courts in order to provide a guide in public law cases.

3. The purpose of this Basic Guidance setting out the recommendations of
the Public Law Outline Monitoring Group for London is to simply
highlight basic requirements of good practice during the currency of care
proceedings.

4. It is to be read in the context of the Initial Local Plan for London of the
10th April 2008 of the Designated Family Judge for London and the
Practice Direction: Public Law Proceedings Guide to Case Management
of April 2010 of Sir Mark Potter reported at [2010] 2 FLR 472 whose
detailed provisions should be actively considered by all those concerned
in the carriage of care proceedings. The overriding objective is set out at
2.1 of the Practice Direction.

5. It is understood that each care case has its own differing requirements to
be to be considered by the court on its individual facts. It is understood
that there are varying and well-known significant challenges, in relation
to resources and otherwise, to the childcare system.

6. The recommendations of the Group in this Guidance are intended to
assist the parties, who are required to help the court further the
overriding objective, to achieve and maintain consistency of good
practice in the carriage of care proceedings

7. It is intended that this Basic Guidance to Good Practice in care
proceedings should be made available to all of those involved in the
carriage of care proceedings across London.

The timetable for the child

8. As stated at 3.5 of the Practice Direction, due regard should be paid to
the timetable for the child to ensure that the parties and the court remain
child-focused throughout the progress of public law proceedings.

9. The parties and the court should always be considering how in practice
to achieve the least delay in care proceedings and the earliest possible
finalization consistent with fairness and the best interests of the child.

10. The court and the parties should actively consider in this regard that part
of the Practice Direction of April 2010 which gives guidance as to stages
1 to 4 of care Proceedings and in particular the time periods within
which stages of the proceeding should be heard: see [2010] 2 FLR pages
482 to 484.

11. It is also understood and accepted that care proceedings should, as a
guide, be finalised within 40 weeks of their issue, earlier if
circumstances permit.

12. It is recommended to be good practice for the parties and the court to
have available to them in writing from the outset of proceedings a short
schedule indicating for the particular case the time periods within which
the 4 stages of the proceedings should be heard. This is to be described
as the “Case Timetable”.

13. Any procedural steps proposed under the Public Law Outline are to be
considered in the context of significant events in the life of the child who
is the subject of the proceedings.

14. When setting the timetable for the child accordingly, the court must take
into account the significant steps in the life of the child who is the
subject of the proceedings.

15. These include not only legal steps but also social, care, health and
education steps.

16. Paragraph 3.4 of the Practice Direction gives examples of the dates the
court will take into account when setting the timetable for the child.

17. It is for the parties, led by the local authority, to outline to the court, on
the individual facts of a case, the significant events in the child’s life
relevant to the timetable to be set by the court for that child

Active case management

18. Active case management includes essentially identifying the timetable
for the child and avoiding unnecessary delay in the proceedings.
Draft case management orders

19. It is essential for a local authority as applicant in care proceedings to
provide to the court at each and every court hearing within such
proceedings (as well as a case summary) a fully drafted case
management order. The lead, as indicated, will be taken by the local
authority but it is the obligation too of the other advocates in the case to
assist in both drafting and ensuring such orders are before the court.
Whilst a draft case management order is no longer required in PLO3
format, it is still a basic requirement and necessity for the court to be
provided with draft orders. Attention is drawn to paragraph 26 (12) of
the April 2010 Practice Direction: this sets out the checklist factors to be
taken into account in drafting case management orders.

Position statements

20. Position statements from the parties are of material help to the court and
are expected to be provided at each and every court hearing.
The advocates meeting and the CMC hearing

21. The parties should actively consider the full provisions set out in the
Practice Direction of April 2010 relevant to the Advocates Meeting and
the CMC hearing.

22. The Advocates Meeting and the CMC hearing remain pivotal in enabling
the court to best set the timetable for the child and avoid unnecessary
delay.

23. It is not acceptable to adjourn the CMC hearing and all necessary
preparation should be done in advance. Adjournment of the CMC
hearing may only be considered in exceptional circumstances.

24. The parties are expected to have available at the CMC hearing details of
the nature and timing of proposed experts and/or assessors with the dates
the latter are available to give evidence at any hearing to be fixed by the
court.

25. The parties must be ready at the CMC hearing for all steps to be
timetabled up to IRH or final hearing, as the court so determines.

Compliance with active case management directions

26. It is the responsibility of the parties to adhere to the timetable the court
has set for the child. This enables the court to ensure the case is dealt
with justly under the overriding objective. A failure by the parties to
enable the active case management of the case may jeopardise the
timetable for the child and cause unnecessary delay in the proceedings.

27. It is the responsibility of the parties to bring to the attention of the court
any material departure from case management directions jeopardising
the timetable for the child set by the court.

28. Active case management includes encouraging the parties to cooperate
with each other in the conduct of the proceedings.

29. It is the responsibility of the parties to speedily address and seek to
remedy by agreement between themselves any difficulties that arise in
compliance with case management directions, in such a way that the
timetable for the child set by the court can be maintained and not
jeopardized.

Transfers

30. If a care case is to be transferred from one court to another, such a
transfer, if merited, should occur in practice at the earliest stage after the
issue of proceedings. The court to which the case is transferred can then
actively case manage it in such a way as to avoid jeopardising the
timetable for the child and causing undue delay in the finalization of
proceedings.

31. Attention is drawn generally to the Family Law Allocation and Transfer
of Proceedings Order 2008 and the Practice Direction “Allocation and
Transfer of Proceedings” issued the 3rd November 2008, but also in
particular to paragraph 3.20 (2) of the April 2010 Practice Direction
which states:
“Active case management includes identifying the appropriate court to
conduct the proceedings and transferring the proceedings as early as
possible to that court.”

32. Late transfers may jeopardise the timetable for the child and cause undue
delay in the finalization of proceedings.

Split hearings/fact-finding

33. The court and the parties should give active consideration to the
Guidance of the President of the Family Division of May 2010 in
relation to the subject of split hearings.
Expedited final hearings for certain types of care cases

34. The court and the parties should be alert to those cases which may be
suitable for an expedited hearing. It is not necessarily easy to be
prescriptive as to the categories of cases which may be so suitable. In
cases involving very young children the court will wish to consider
whether the case may be so suitable for expedition.

35. There may be clear cases of full parental engagement after the issue of
proceedings leading to the likelihood of a speedy reunification. There
may be cases of clear parental disengagement or abandonment in relation
to a child leading to the likelihood of the child not being so reunified.

36. In such circumstances, the local authority should present the court a clear
timetable setting out the date by which its final recommendation will be
made.

37. In cases meriting expedition, a speedy conclusion of the care
proceedings is likely to be possible well within the guide period of 40
weeks referred to previously.

38. Where more than one child is the subject of care proceedings, the
individual circumstances of the case may cause the court and the parties
to consider whether a separate timetable for the finalization of the
proceedings may be set for one or other of those children. It may be
apparent that an expedited hearing is suitable for one or more but not all
of the children who are subjects of the proceedings.

Experts and Assessors

39. Attention is drawn generally to the detailed terms of the Practice
Direction: Experts in Family Proceedings Relating to Children dated
April 2008.

40. In relation to expert evidence and differing types of assessments in care
proceedings, it is to be expected of practitioners that such experts and
assessors should be asked to take into account specifically the timetable
for the child as set by the court, when setting a timetable for their own
reports.

41. A failure to do this may jeopardise the timetable for the child as set by
the court and cause unnecessary delay in the finalization of the
proceedings.

The Children’s Guardian

42. The purpose of this basic guidance to good practice is not to consider the
challenges currently faced by Cafcass and their effect on care
proceedings. Attention is drawn to the joint message and agreement
between the President of the Family Division and the Chief Executive of
Cafcass dated the 1st October 2010 entitled “Arrangements to assist
Cafcass pending implementation of the Family Justice Review.”

43. In relation to good practice from the point of view of the child, there is
much importance to be attached to the intervention of a children’s
guardian from the outset of proceedings, so that he or she may see the
children early on and have full input into the recommendations being
made to the court in relation to parental assessments, expert evidence
and otherwise.

44. A failure in the appointment of a guardian to act throughout the
proceedings may jeopardise the timetable for the child and cause
unnecessary delay to the proceedings.

Parallel Planning

45. Applicant local authorities in care proceedings will be giving primary
consideration to whether a child may be parentally re-unified. They
should in practice also place sufficient emphasis on the importance of
active parallel planning during the currency of such proceedings.

46. This should apply from the outset of proceedings through to their
determination.

47. The court will be giving primary consideration to whether a child may be
parentally reunified and will accordingly give case management
directions in relation to parental assessment.

48. The court in its case management order should also consider reflecting in
its directions the importance to the case of active parallel planning by
way of a general clause in its case management order to the effect that
“the local authority is to carry out active parallel planning through the
proceedings, whether as to kinship assessments within the extended
family or seeking potential alternate carers for the child outside of the
family.”

49. A failure to carry out active parallel planning throughout proceedings
may jeopardise the timetable for the child and cause undue delay to the
proceedings.

Kinship assessments

50. It is important to ascertain at the outset of care proceedings which
member or members of the family should be subject to assessment. An
applicant local authority in issuing care proceedings should itself be
considering the identification of any family member or members who
may be suitable as kinship carers and who accordingly should be
urgently assessed by it. In cases with a complex family structure, the
provision by the local authority of a genogram at the outset of
proceedings is to be viewed as good practice.

51. The court should always consider at the early stage of proceedings
giving specific directions as to kinship assessments. The local authority
may have a kinship assessment underway or already completed. The
court order may direct the parents to notify the local authority
expeditiously of the name or names of any member or members of the
family they wish to be assessed. The court at the early stage of
proceedings similarly may direct the local authority to carry out, within a
specified time, an assessment of any such member or members of the
family the parents reasonably seek to be assessed.

52. The prospect of an unforeseen approach by a member of the extended
family late in the proceedings can be diminished by active case
management early on in the proceedings. The failure of any such active
case management early on may jeopardise the timetable for the child set
by the court and cause unnecessary delay in the proceedings.

Parallel planning outside of the extended family

53. The court should consider at the early stage of case management a
general clause to the effect that “the local authority is to ensure, by way
of parallel planning only, the subject child is placed before such
permanency panel as may be appropriate in advance of the substantive
determination of the case.”

The disclosure of material by the Metropolitan Police

54. An appropriate order for consideration in case management is:
“Any party requiring disclosure of material in the possession of the
Metropolitan Police shall within 7 days of the First Appointment (or by
such later date as may be specified by the court) file and serve written
confirmation that a request has been sent in accordance with Annex B to
the Protocol for Disclosure by the Police of Information in Family
Proceedings. If obtained, the requiring party shall within 7 days of
disclosure serve copies of such documents on the other parties. Where
police object to disclosure and/or no agreement can be reached, the
requesting party shall apply on notice for an order for disclosure and
request a hearing date. Provision of the requested information in advance
of the hearing should be deemed compliance with the proposed order for
disclosure.”

Communicating with the Home Office

55. Attention is drawn to the recently re-issued Practice Direction of
October 2010 of the President of the Family Division (replacing and
amalgamating previous guidance issued in 2002,2004 and 2006) entitled
“Communicating with the Home Office in Family Proceedings.”

56. This is usually referable to cases which require clarification as to the
immigration status of a party or parties in proceedings.

57. It is the responsibility of the parties led by an applicant local authority in
such cases to obtain and complete the form EX660 in advance of seeking
such a direction in court. A sample completed EX660 form is attached to
the recent guidance. The parties are also to ensure a suitable court order
is drawn requesting the Home Office to provide to the court within a
specified period its response to the information sought. A sample court
order is attached to the recent guidance.

http://www.judiciary.gov.uk/publications-and-reports/guidance/basic-family-guidance-london

District Judge Richard Harper
The Chair, on behalf of the PLO Monitoring Group for
London
Approved by the Designated Family Judge for London
His Honour Judge John Altman
October 2010

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