Child Protection & Family Justice in England & Wales: Best Interests of Children, Lecture notes of Public Law

Download Child Protection & Family Justice in England & Wales: Best Interests of Children and more Lecture notes Public Law in PDF only on Docsity! FINAL 09/12/2020 1 Public Law Advisory Group Final Report Guidance on Recovery & Reform in Public Law Proceedings Introduction 1. This guidance has been produced by the Family Justice Reform Implementation Group which consists of stakeholders in the child protection and family justice systems, including senior family judges, Cafcass, Cafcass Cymru, ADCS, ADSS Cymru, Ofsted, DfE, MoJ and the Welsh Government. 2. It is issued with the approval of the President of the Family Division and the Family Justice Board. 3. The guidance is intended to assist all those concerned with the child protection and family justice systems in England & Wales to ensure that the best interests of children are paramount at all times, to promote improved practice and decision making in respect of the removal of children from the care of their parents/carers, to achieve a more effective and efficient use of resources and to ensure the recovery of both systems from the adverse consequences of the pandemic and to secure beneficial reforms. 4. It is not intended to be rigidly prescriptive and should be tailored to the circumstances and conditions prevailing in each DFJ area. The guidance reflects elements of good practice undertaken in many areas of England & Wales and is underpinned by the key principles in the Children Act 1989: • the paramountcy principle of best interests • the presumption that children should be brought up by their own families • working in partnership with parents • the use of voluntary accommodation • and the concept of No Order. 5. It is assumed that judges and all professionals will have regard to and take account of the President’s guidance in The Road Ahead and to MacDonald J’s Guidance on Remote Hearings (Version 6). FINAL 09/12/2020 2 Background 6. The fundamental concept in the child protection and family justice systems is the paramountcy of the welfare best interests of the child and this underpins every recommendation in this document. 7. Prior to the implementation of the recommendations of the Family Justice Review of 2011, public law care proceedings were taking on average 60 weeks to be completed, which had an adverse impact on the courts’ ability to hear and conclude other children’s cases (e.g. adoption applications). The imposition of a statutory 26 week limit in which to conclude public law care proceedings had a dramatic impact and quickly led to cases being completed within or close to 26 weeks. Permanency plans for children were made and approved by the court within a timeline much more conducive to meeting a child’s best interests. 8. The progress made in securing protection, stability and permanence for children has been under increasing pressure, with growing backlogs exacerbated by COVID-19. For children who remain stuck in the middle of the court system, the detriment to them is immeasurable. Their young lives are now on hold and their whole futures could be seriously affected with long-term consequences. It is essential that the sector, as a whole and as a partnership, and with the endorsement of the Family Justice Board, considers these children as a top priority. Local Authorities Non urgent cases 9. All cases involving the courts are serious and should be considered in court in a planned and orderly manner, with time for the parents, Cafcass and the court to prepare for the hearing and consider the issues sufficiently. Where a child is not at immediate risk of harm, local authorities should be confident that, if they decide to bring a case to court, it is in the child’s best interests and that they have gathered all of the relevant information that the court will need to make its decision. Applications that do not merit the court’s attention, because the application does not adhere to the principles of the Children Act 1989, impede the court’s capacity to hear applications that do. It is for this reason that the child protection planning process alongside the PLO should be thoroughly exhausted before an application is made to court. FINAL 09/12/2020 5 proportion of cases1 are coming to court as ‘urgent’, when they do not meet this threshold, and the cause of the “urgent” classification, is not based upon the risk of significant harm, but some other factor. In these circumstances, the application has been un-necessarily rushed through to court, often with a request for a hearing within 24-48 hours, resulting in the application being inadequately prepared. This creates huge frustration for all parties and uses court capacity which could either be used for truly urgent cases, or indeed other cases which have been properly prepared for a productive hearing. None of this is in a child’s best interests. Checks and Balances 19. In developing this guidance, the Family Justice Reform Implementation Group advises that the complexity of decisions concerning the removal of children from their parents/carers cannot be underestimated. • Lead professionals have a central role in robustly vetting applications to court and need mechanisms in place to ensure that practice complies with legislative and statutory requirements, reflecting the key principles of the Children Act 1989. They also have a role in ensuring that rigorous safeguarding procedures are in place for cases that are not taken to court because it is not in the best interests of the child to do so. • Continual improvement is critical. The peer review tool recently developed and tested by six ‘Partner in Practice’ local authorities in England is now available to be used by other authorities as part of Regional Improvement and Innovation Alliances’ work programmes. This would assist in the implementation of, and adherence to this guidance, and would also inform improvement conversations and practice in respect of ensuring robust safeguarding mechanisms for cases not taken to court and improved pre - proceedings and the use of care and supervision orders. 20. It is also recommended that: a) Statutory guidance (Working Together to Safeguard Children) is updated to provide greater clarity regarding the expectations of local authorities in respect of pre–proceedings; b) Ofsted and CIW criteria for the inspection of local authority children’s services across England and Wales should be amended such that there 1 Judges estimate the number of cases labelled as ‘urgent’ to be approximately 60%. FINAL 09/12/2020 6 is an assessment of the extent to which reasoning about pre– proceedings, the support for families, the protection of children during this period and the decision to issue are clear and explicit being focused on children’s best interests; c) That practice direction 12A is amended to be clearer on the expectations of Children’s Guardians early in proceedings when they give an initial view to the court. In any such amendment, the expectation will be that the parent’s views have been sought and understood, that the child’s wishes and feelings work has commenced, that an understanding of pre-proceedings is established such that a view can be provided to the court about the decision to issue at this time; and d) That Practice Direction 16A is also amended to complement the 12A amendments regarding the Children’s Guardian giving a view on the work in pre- proceedings but setting out clearly when this must happen and including the option for recommending an adjournment to proceedings if not enough time has passed to satisfy the court that removal is in the child’s best interests. Cafcass & Cafcass Cymru 21. Cafcass/Cafcass Cymru supports and advocates for focussed, planned, and reviewed work being undertaken with families in advance of issuing any court application (the “PLO”) and acknowledges that there may need to be a delay in referring a matter to court to enable the family to make the necessary changes. Cafcass/Cafcass Cymru should promote a culture of support for pre-proceedings work with families to reduce the number of applications to court. Guardians should seek to understand and to be analytical in their evidence to the court, the support that has been available to families in pre-proceedings and very specifically the risks to the safety and protection of children that child protection plans were seeking to reduce and which at the time of application are considered to have remained the same or increased. 22. Cafcass/Cafcass Cymru Guardians should carefully consider and set out their rationale for the order that is really required, why now, and what will be the impact on the child. 23. Cafcass/Cafcass Cymru Guardians should seek to make greater use of the no order principle. FINAL 09/12/2020 7 24. Cafcass/Cafcass Cymru Guardians should share their reasoning and independent position on behalf of the child/ren with the local authority as soon as they are able to and should maintain a regular and open dialogue with the local authority throughout the progress of the case. Cafcass/Cafcass Cymru Guardians will comment on the care plan as it is being crafted and will keep the court and parties informed of any issues arising that may impact on the case. 25. Cafcass/Cafcass Cymru should use their national data and practice insights to initiate discussions with system leaders about regional and local variation in the use of orders and rates of care order applications. 26. Cafcass/Cafcass Cymru Guardians should only make an application for expert evidence where it is necessary. Legal Professionals 27. Legal professionals should increase the effective use of Advocates’ Meetings (a) to resolve issues, (b) to identify the key and contentious issues relevant to a fair and just resolution of the case before the court, (c) to identify the evidence necessary to resolve these issues, (d) to provide accurate time estimates for court hearings and (e) to agree the appropriate format for the hearing whether for directions hearing (almost invariably remote) and fact finding and/or final welfare hearings. 28. They should complete the case plan template and witness template in a timely manner: an example of these templates is set out in Annexe A. In respect of applications for an urgent hearing we recommend legal professionals should file a checklist to enable judges to list the cases appropriately: an example of an urgent hearing checklist is set out in Annexe B. 29. They should provide case summaries and/or position statements which are solely focussed upon and limited to the issues to be resolved at the forthcoming hearing by no later than 4pm the day before the hearing. 30. They should notify the court and the parties immediately if a failure to comply with a court direction is being contemplated or will occur whether by that party or any other party and to seek appropriate directions from the court. 31. They should consider whether the issue(s) in dispute can be resolved by the court on paper with the benefit of written submissions from each relevant FINAL 09/12/2020 10 45. Direct timely completion of case plan templates and witness templates. 46. Introduce neutral evaluation hearings (cf. FDRs in financial remedy cases) to increase the number of cases concluding with consent orders or, at least, limiting the issues/areas in dispute. Fee paid Judiciary 47. The limits on sitting days for all fee paid family judiciary should be suspended. 48. Increase the number of salaried judges working remotely from home to free up more courtrooms for fee paid judges to conduct hearings and/or provide the technology & support to fee paid judges to conduct hearings remotely from the court estate. 49. Greater allocation of private law proceedings to fee paid judges to free up salaried judges to focus on public law proceedings and to ensure a greater degree of judicial continuity. Well-being 50. All professionals in the family justice system can easily become overburdened with the weight of the practical and emotional efforts inherent in child protection practice. Many are now experiencing additional pressure and stress with the unremitting workload and the new ways of working resulting from the restrictions imposed by the pandemic. 51. Many professionals have also felt overwhelmed by the plethora of instructions, advice, guidance, and new ways of working, particularly in recent months as we have moved through the pandemic and adapted accepted ways of working at pace. 52. Further, guidance must be underpinned by (i) a local and national system- wide commitment to achieving the necessary cultural shift towards greater respect and cooperation and (ii) our shared commitment to achieving the best outcomes for children. This will be particularly important for practitioners who carry the tensions between family and state intervention, on a day to day basis. Social workers are engaged in the most challenging and complex family situations and carry exceptional responsibilities on behalf of society. It is crucial that social workers feel they have the FINAL 09/12/2020 11 confidence of their local authority leaders and safeguarding partners who actively share the risks they carry when working with families in the child protection system. 53. We would recommend that each DFJ revise and update their Well-Being Policy in light of the challenges presented by the pandemic. FINAL 09/12/2020 12 Annexe A Public Law Advisory Group Case Plan Template & Witness Template (Reproduced with the kind permission of HHJ Thomas, the DFJ of Birmingham) THE FAMILY COURT SITTING AT BIRMINGHAM COVID-19 CASE PLAN TEMPLATE Notes 1. It is envisaged that the case plan template will be discussed and completed at an advocates’ meeting before the issues resolution hearing, pre-hearing review or dispute resolution appointment. The applicant, usually the local authority, will be able to fill in much of the required information in advance. However, it is imperative that the advocates’ meeting is attended by the trial advocates, who must have full instructions, in order to complete the case plan. The information you provide will inform the Court as to the practical arrangements that are necessary to ensure an effective hearing and will be required before a case is listed for a final hearing or a finding of fact hearing. 2. All parties have the responsibility to contribute to this document and ensure that it is completed sufficiently far in advance of the hearing for it to be submitted to the allocated judge (see paragraph 5 below). When completing the case plan, please have regard to the President’s framework ‘The Road Ahead’ dated 9th June 2020. 3. The parties are required to complete the case plan as far in advance of the issues resolution hearing, pre-hearing review or dispute resolution appointment as possible or as directed by the Court. If necessary, the advocates’ meeting can be directed retrospectively. 4. Parties should also complete the Covid-19 witness template and provide a copy with this case plan. The witness template should specify the relevance of each witness to the issues to be determined. 5. The case plan should be agreed by all parties, if possible. Any areas of disagreement should be clearly highlighted. Please complete the case plan electronically and submit it by email to the allocated judge as soon as possible or, at the latest, by 2pm on the day before the hearing. FINAL 09/12/2020 15 First Respondent Please specify if they are a litigant in person Click or tap here to enter text. Solicitor and firm Click or tap here to enter text. Solicitor’s email address Click or tap here to enter text. Counsel and chambers Click or tap here to enter text. Counsel’s email address Click or tap here to enter text. Second Respondent Please specify if they are a litigant in person Click or tap here to enter text. Solicitor and firm Click or tap here to enter text. Solicitor’s email address Click or tap here to enter text. Counsel and chambers Click or tap here to enter text. Counsel’s email address Click or tap here to enter text. Please add any further respondents or interveners by copying and pasting the table above. Children For each child please give their name and date of birth (as in the birth certificate) Click or tap here to enter text. FINAL 09/12/2020 16 Children’s Guardian Click or tap here to enter text. Solicitor and firm Click or tap here to enter text. Solicitor’s email address Click or tap here to enter text. Counsel and chambers Click or tap here to enter text. Counsel’s email address Click or tap here to enter text. 3. Format of the hearing This hearing is intended to be: ☐ Remote (all participants attend remotely) ☐ Hybrid (some participants attend in person and some remotely) ☐ Attended (all participants attend the court building in person). If so, please explain why the hearing cannot proceed remotely: Click or tap here to enter text. ☐ There is a dispute about the format of the hearing and the parties’ positions are as follows: Click or tap here to enter text. 4. Remote and hybrid hearings (a) What is the agreed videoconferencing platform? Please note that the Court’s preference is to use CVP, Skype for Business or Microsoft Teams. Zoom may be used at the discretion of the Judge, but please note that Zoom remains incompatible with many judicial laptops. Click or tap here to enter text. (b) Who will ‘host’ the hearing? FINAL 09/12/2020 17 Please note that the Court will record the hearing unless otherwise directed. Click or tap here to enter text. (c) Who will be responsible for collating the participants’ email addresses or other appropriate contact details and providing these to the host? The expectation is that the local authority in a public law case and the applicant in a private law case will take responsibility unless otherwise agreed. Click or tap here to enter text. (d) Who will be responsible for ensuring that witnesses receive an invitation to the hearing? The expectation will be that the party calling the witness will be responsible for providing the witness with the videoconferencing link, and for keeping the witness updated in respect of the timings for their evidence. Click or tap here to enter text. (e) Are there any expert witnesses? Please provide details and confirm that each expert is willing and able to give their evidence using the parties’ preferred videoconferencing platform. Please bear in mind that the court’s traditional video link facility is not compatible with other videoconferencing software such as Skype, Teams, etc. Click or tap here to enter text. 5. Access to the videoconferencing platform All participants, including those attending court, will require access to a device on which they can view the ‘remote’ part of the hearing. A laptop or iPad is preferable to a smartphone, particularly if the participant is due to give evidence. The use of headphones may reduce the possibility of ‘feedback’ if multiple devices are in use at the hearing. In any event, it is imperative that only one audio speaker and one microphone is in use at any one time in the courtroom. The parties should confirm that all participants will be able to access the chosen videoconferencing platform. Their ability to do so may be affected by internet connectivity and bandwidth issues, particularly if (for example) two people from the same household are accessing the platform simultaneously. It is also important that all participants have the skills necessary to join the hearing, mute themselves when necessary, and re-join the hearing if they are cut off. For this reason, parties are strongly advised to carry out a ‘trial run’ prior to the hearing, using the chosen videoconferencing platform. FINAL 09/12/2020 20 Click or tap here to enter text. Click or tap here to enter text. Click or tap here to enter text. + Please add more rows as necessary (b) The expectation will be that if a lay party (e.g. a parent) is attending court, his or her legal representative should also attend rather than joining the hearing remotely. Is there any reason why this will not be possible in this case? Click or tap here to enter text. (c) Are there any practical issues not identified in the table above which should be considered when making arrangements for a participant to attend court safely? For example, issues to do with public transport. Click or tap here to enter text. (d) How is it proposed that those issues should be resolved? Click or tap here to enter text. (e) On the basis of the information given above, the maximum number of participants expected to attend court for the hearing on each day is: Click or tap here to enter text. 8. Communications with legal representatives during the hearing Each party will need to ensure that they have access to a means of communicating with their legal representative during the hearing. If they are both in the courtroom, the Judge will permit pieces of paper to be passed with written instructions or, if necessary, the Judge will rise to allow instructions to be taken. ☐ The parties confirm that they have each made suitable arrangements to communicate with their legal representatives during the course of the hearing. OR FINAL 09/12/2020 21 ☐ The following parties will have difficulty in communicating with their legal representatives during the course of the hearing (give details): Click or tap here to enter text. 9. Interpreters, intermediaries and lay advocates (a) Does any party require the assistance of an interpreter, an intermediary or lay advocate during the course of the proceedings? If so, please give details. Click or tap here to enter text. (b) What are the arrangements for communication between the party and the interpreter, intermediary or lay advocate during the hearing? Social distancing dictates that the expectation will be that such communications may have to, where possible, take place over a separate telephone line and that the interpreter and party will place themselves on ‘mute’ during the hearing, other than when giving evidence. For example, if the mother requires an interpreter but she is attending the hearing in person, her interpreter could attend remotely and observe the proceedings over the videoconferencing platform. The interpreter and the mother would then be on the phone to each other during the hearing. If the interpreter has to be physically present, all participants will need to wait for a consecutive translation rather than a contemporaneous translation, as the interpreter cannot whisper from 2 metres away. Therefore, any parties requiring an interpreter are required to give serious thought to this issue. With regard to lay advocates and intermediaries, each case will be different due to the needs of the particular party. Therefore, careful thought needs to be given so as to allow full participation in the hearing. Click or tap here to enter text. 10. Electronic Bundle (a) Who will have responsibility for preparing the electronic bundle? In public law cases this will usually be the local authority. In private law cases it will usually be the applicant. Click or tap here to enter text. (b) The electronic bundle will be prepared and circulated to the parties and the court by no later than (insert date): Click or tap here to enter text. (c) The bundle will be prepared and circulated using FINAL 09/12/2020 22 ☐ Egress ☐ Dropbox ☐ Microsoft OneDrive ☐ Other (please specify): Click or tap here to enter text. (d) How will witnesses participating remotely access the bundle? Any party, social worker, guardian or expert will be entitled to a copy of the entire bundle, which should be provided in advance electronically. However, other lay and professional witnesses (e.g. health visitors, contact workers, family members, etc.) are not entitled to have advance access to the entire bundle. For those witnesses, the parties should identify documents to which the witness will be referred during their oral evidence and provide electronic copies of those documents shortly before the evidence commences. Obviously, short passages can be read to a witness, but context is often required. Another option would be to use a document/screen sharing facility within the video conferencing software or remote presentation software such as Clickshare. Please provide details as to what has been agreed in this regard. Click or tap here to enter text. (e) Is it proposed to provide a mini bundle to any witness who is to attend the hearing in person, containing only those documents to which he/she will be referred during his/her oral evidence? ☐ Yes ☐ No 11. Conduct of the hearing The parties are asked to read through and confirm their agreement to the following ‘ground rules’: (a) All participants to a remote hearing should join the remote hearing prior to the Judge. (b) At the start of a hearing, the Judge will identify all participants in the remote hearing and give any additional directions the Court wishes to make about the use of cameras and microphones. (c) The Judge will give any necessary warnings, including warnings to all parties regarding recording and confidentiality. (d) The parties will be asked to turn on their microphones whilst warnings are given and will be invited to confirm their understanding of the warnings given. FINAL 09/12/2020 25 COVID-19 WITNESS TEMPLATE Notes • This witness template requires a greater level of detail than has previously been required so as to assist the Court in determining how to list the matter. This is necessary due to the huge pressures on judicial resources and court accommodation during the Covid-19 pandemic. • It must be completed prior to the hearing at which it will be considered by the Court. The first part of the template deals with the issues in the case. The parties must consider and specify the issues to which each witness’s evidence is relevant. • In substantial cases, for example cases listed for five days or more or ones which are complex, the Court will allow the first day of the hearing to be used for the purposes of conferences, advocates’ discussions, a trial run of the technology, judicial reading and case management. In shorter cases, it may be appropriate to timetable the first witness to attend, for example, not before 12noon. • All times are to be exact, e.g. 10.30am – 11.15am, rather than expressed in minutes. If it is contented that this is not possible, the parties shall raise this at the hearing. • The time estimate for the case will take into account the need for regular breaks and for instructions to be taken. Estimated judicial reading time required: Click or tap here to enter text. Schedule of Witness Information Name and role in the case Called by Page references Issues to which the evidence pertains Availability Other information e.g. interpreter required, language, etc. e.g. (please delete) Jenny Smith Allocated SW Local Authority C1-28, C145-153, D1-13 Allegations of neglect, sibling attachment assessment and final care plan On annual leave 16-24 August 2020. “Shielding” so unable to attend in person. Ms Smith is leaving the LA on 19 September 2020 + Please add more rows as necessary FINAL 09/12/2020 26 Timetable for Oral Evidence Date and day of trial Name and role in the case Attending in person or remotely Local Authority Mother Father Guardian TOTAL Time for judicial reading, case management, conferences, pre-hearing discussions and testing the technology e.g. (please delete) Tuesday 30th June (Day 2) Jenny Smith Allocated SW Remotely 10.30am – 10.40am 10.40am – 11.40am 11.40am – 12.15pm 12.15pm – 12.30pm 2 hours Closing Submissions Judgment FINAL 09/12/2020 27 Annexe B Section 38 Urgent Listings Checklist Notes: The purpose of this form is to assist the Court in identifying and listing of urgent initial hearings. Checklist to be lodged with C110A. Date: Child(ren): Names and ages / d.o.b: Address(es): Name of mother and address (d.o.b. if known): Name of father and address (d.o.b. if known). Also state if father has PR. Name and address (d o b if known) of any other persons sharing PR. Legal Representative of either parent if any: Reasons for urgency: Police protection – expiry time and date …………………………… Capacity to consent to section 20 accommodation Possible NAI – date of discharge from hospital …………………………….. New-born baby – date of discharge from hospital…………………………… International element – what is the immediate risk…………………………… Are there any alternative options which will protect the child(ren) equally well? Why not: 1) Co-operation of parents to go somewhere safe 2) Placement with other parent (if they do not have care of child) 3) Family placement 4) voluntary accommodation pending ICO Is the LA seeking immediate removal for the child(ren) from the care of parents? If so state reasons: Are the child(ren) subject to a Child Protection Plan (if so what category)? If not what kind of involvement if any has there been with Children’s Social Care? What support will the LA put in place prior to initial hearing? Names of Social Worker and of Team Manager Phone numbers