The Children And Families Act 2014 – Changes to Public Law Care Proceedings

The principle changes as a result of the Children and Families Act 2014 to public law can be summarised as follows:

Introduction of the 26 week time limit on the length of cases;

Introduction of a “timetable for the child”;

New time limits for Interim Care and Supervision Orders;

Changes to the instruction of experts;

Changes in the way Care Plans should be scrutinised by the Court;

Clarification of the Local Authority’s duty to promote contact with children in care;

Introduction of Fostering for Adoption;

Removal of the requirement to consider ethnicity when identifying a long term placement of a child; and

Changes to contact with a child post adoption.

Introduction of the 26 week time limit and a timetable for the child

Section 14(2) of the Children and Families Act 2014 amends s.32(1)(a) of the Children Act 1989 to insert that a case must be concluded:

(i) without delay; and

(ii) in any event, within 26 weeks, beginning with the day on which the application was issued.

In order to achieve this, the Court is now required to draw up a specific timetable for the child at the beginning of proceedings, which will involve all key dates including the child’s birthday, school progress, any Looked After Child reviews, Child Protection Conferences and any other dates relevant to the child.

S.14(3) of the Act makes numerous additions to s.32 of the Children Act regarding the timetable for proceedings. The new s.32(3) of the Children Act provides that, when drawing up a timetable for the child, the Court must have regard to:

(a) the impact which the timetable would have on the welfare of the child; and

(b) the impact which the timetable would have on the way the proceedings are to be conducted.

S.32(4) provides for the timetable to be revised if necessary and that the Court, when considering such a revision or any decision which may give rise to a need to revise the timetable, should have regard to:

(a) the impact which any revision would have on the welfare of the child; and

(b) the impact which any revision would have on the duration of the proceedings and the way they are to be conducted.

The new Act does include provision in s.32(5) for the 26 week time limit for proceedings to be extended by up to 8 weeks at a time (s.32(8)), but only if the Court considers that the extension is “necessary to enable the Court to resolve the proceedings justly”.

When considering whether to grant an extension, s.32(6) sets out that the Court must have particular regard to:

(a) the impact which any ensuing timetable revision would have on the welfare of the child; and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings.

In this section, “ensuing timetable revision” refers to any revision to the timetable for the child which would arise from the extension to the 26 week timescale.

When deciding whether to grant an extension, s.32(7) specifically states that “extensions are not to be granted routinely and are to be seen as requiring specific justification”.

Guidance on when extensions are likely to be considered necessary was given by Sir James Munby in the recent case of Re S (A Child) [2014] EWCC B44 (Fam). At paragraph 33 of his Judgment, Munby P lists three different situations in which extensions beyond the 26 week limit might be necessary:

(i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring readily to mind (no doubt others will emerge) are: (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed; (b) FDAC type cases; (c) cases with an international element where investigations or assessments have to be carried out abroad; and (d) cases where a parent’s disabilities require recourse to special assessments or measures.

(ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are: (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface; (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer; and (c) cases where a realistic alternative family carer emerges late in the day.

(iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks.

Munby P goes on to stress that “only the imperative demands of justice – fair process – or of the child’s welfare will suffice” to extend the proceedings beyond 26 weeks.

It is clear that, when considering an extension to the 26 week time limit, the emphasis is on justice and whether further time is necessary (and not simply desirable or helpful) to the just determination of proceedings.

Time limits for Interim Care and Supervision Orders

Previously, Interim Care and Supervision Orders could only be made for a maximum of 8 weeks initially, with subsequent renewals to last no more than 4 weeks. These time limits set out in s.38 of the Children Act have now been removed by the new Act. The aim is that the Court will be able to decide the length of Interim Care and Interim Supervision Orders according to the particular circumstances of the case. Generally, they will be made at the beginning of the proceedings to last until the envisaged final hearing date. The Court will be able to make a further Order if the Interim Care or Interim Supervision Order expires before the proceedings have been resolved.

A possible impact of this may be that there will be less opportunity for parents to contest renewal of an Interim Care Order on the basis of change of circumstances, as this would previously be listed for hearing by the Court to coincide with the date on which the Order was due to be renewed. There is no specific provision in the Act which prevents reviews of Interim Orders, so it may be that Judges will see fit to conduct reviews of Interim Orders as and when relevant issues arise.

Instruction of experts

Until recently, it was routine for independent experts to be instructed to provide reports, such as psychological/ psychiatric assessments of parents and children and parenting assessments by independent social workers, in care proceedings. However, the introduction of Rule 25.1 Family Procedure Rules (Amendment) (No. 5) Rules 2012 which came into force on 31 January 2013 restricted expert evidence in care proceedings to that which is “necessary to assist the Court to resolve the proceedings”.

This has now been included in statute by s.13 of the new Act, although there has been a slight alteration to the wording in that s.13(6) provides that the Court may give permission to instruct an expert where “necessary to assist the Court to resolve the proceedings justly“. (An expert in this context applies only to instructed experts and not to the allocated Social Worker (or any other officer of the Local Authority) or the Children’s Guardian.)

In deciding whether to grant permission to instruct an expert, the Court is to have regard in particular to the factors set out in s.13(7):

(a) any impact on the children concerned, including where they are to be medically or psychiatrically examined;

(b) the issues in the case to which the expert evidence would relate;

(d) what other expert evidence is already available;

(e) what other evidence could be given by another person on the matters to be asked of the expert;

(f) the impact which granting permission would be likely to have on the timetable, duration and conduct of the proceedings;

(g) the cost of the expert evidence; and

(h) any matters set out in the Family Procedure Rules

Paragraph 25.7 of the Family Procedure Rules 2010 states that where a party wishes to apply for permission to instruct an expert, a detailed C2 application must be made to include the following information:

(i) the field in which the proposed expert practices;

(ii) if possible, the name of the proposed expert;

(iii) the issues in the case to which the expert’s evidence would relate;

(iv) whether the expert evidence could be obtained from a single joint expert;

(v) the other matters set out in Practice Direction 25C (including qualifications and expertise of the expert by way of CV if possible, expert’s availability, timetable for the report, likely cost of the report and how the costs are to be apportioned.)

A draft Order setting out the directions relating to the expert’s instruction must be included with the application, together with a draft letter of instruction.

Scrutiny of Care Plans by the Court

S.15 of the new Act replaces s.121(1) of the Adoption and Children Act 2002 and s.31(3A) of the Children Act 1989 (which set out that the Court should not make a Care Order until it has considered the Local Authority’s Care Plan for the child), with the following:

(3A) A Court deciding whether to make a Care Order:

(a) is required to consider the permanence provisions of the Care Plan for the child, but

(b) is not required to consider the remainder of the Care Plan, subject to s.34(11) (which requires the Court to consider the arrangements for contact with the child before making a Care Order).

The permanence provisions referred to in s.3A are any provisions in the Care Plan relating to who the child is to live with in the long term, or if they are to be placed for adoption.

The only other aspect of the Care Plan which the Court must consider when deciding whether to make a Care Order are the proposals for contact for the child with their parents and family.

It will be interesting to see how this approach will be compatible with the recent landmark case law Re B (Care Proceedings: Appeal) [2013] UKSC 33, Re B-S (Children) [2013] EWCA Civ 1146 and Re G (A Child) [2013] EWCA Civ 965, all of which made clear that, where the Care Plan before the Court is one of adoption, the Judge should undertake a global, holistic evaluation of each of the options available for the child’s long term future. Clearly, this would include consideration of the Care Plan beyond placement and contact.

Contact with a child in care

S.8 of the new Act has tidied up what was previously a contradiction in the Children Act 1989 regarding the Local Authority’s duty to promote contact for a child in care.

Para 15(1) of Schedule 2 of the Children Act sets out the Local Authority’s duty to promote contact between a child in care and his parents, any person with parental responsibility and any relative, friend or other person connected to him.

S.34(6) permits a Local Authority to refuse to allow such contact if they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare. However, Schedule 2 did not include provision for a Local Authority to be relieved of its duty to promote contact where it was refused under s.34(6).

Therefore, the Children and Families Act has inserted a new paragraph 34(6A) into the Children Act which states:

“where (by virtue of an order under this section, or because subsection (6) applies) a Local Authority in England are authorised to refuse to allow contact between the child and a person mentioned in any of paragraphs (a) to (c) of paragraph 15(1) of Schedule 2, paragraph 15(1) of that Schedule does not require the authority to endeavour to promote contact between the child and that person.”

Introduction of Fostering For Adoption

S.22C of the Children Act 1989 provides that when children are looked after by a Local Authority, the Local Authority must make arranges for the child to live with a parent, person with parental responsibility, or a person who held a Residence Order/had residence of the child by way of a Child Arrangement Order immediately before the Care Order was made.

A new subsection 9A will be inserted into s.22C by the Children and Families Act which will impose a duty on the Local Authority to consider placing the child in a ‘fostering for adoption’ placement when adoption is being considered for the child.

‘Fostering for adoption’ aims to reduce the number of potential placement moves for a child by placing them with carers who are approved prospective adopters. A Local Authority should consider such a placement whenever adoption is likely to be an option for the child, even if it is one of several options.

Where this applies, a Local Authority must still first consider placing the child with an individual listed in s.22C(6)(a) of the Children Act, namely: a relative, friend or other person connected with the child and who is also a Local Authority foster parent. However, where the Local Authority decides that such a placement would not be appropriate for the child, it must consider a fostering for adoption placement.

Where a child is to be placed in a fostering for adoption placement, the requirements of s.22C(8) and (9) do not apply. This has the effect that a fostering for adoption placement does not have to be near the child’s family or school or within the Local Authority’s area.

Where the Local Authority has applied for a Placement Order and that application has been refused, there will be no requirement for the Local Authority to consider a fostering for adoption placement.

Removal of the requirement to consider ethnicity when identifying a long term placement of a child

The Children and Families Act makes a number of changes to the law relating to adoption. Along with the introduction of fostering for adoption, the most significant changes relate to:

Ø removal of the requirement to consider ethnicity when identifying a long term placement of a child; and

Ø contact after adoption.

S.3 of the new Act repeals s.1(5) of the Adoption and Children Act 2002, which states that when placing child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background. This section will no longer apply to adoption agencies in England, but will continue to apply in Wales.

S.1(4)(a)-(f) of the Adoption and Children Act set out the factors for consideration by the Court or adoption agency when approving an adoptive placement for a child. S.1(4)(d) requires the Court/adoption agency to consider the child’s age, sex, background and any of the child’s characteristics which the court or adoption agency considers relevant. It is therefore likely that religion, racial origin and cultural and linguistic background will be considered as part of the child’s background and characteristics when identifying an appropriate adoptive placement; but the removal of the provision to specifically consider it will ensure that identifying a placement which provides an ethnic match for the child is not prioritised above the other factors for consideration, and may help to make more potential placements available to the child.

Contact with a child post adoption

Section 9 of the Children and Families Act introduces two new sections into the Adoption and Children Act 2002.

S.51A sets out who can make an application for post adoption contact and applies where an adoption agency has placed or has been authorised to place a child for adoption and the Court is making or has made an Adoption Order in respect of the child (s.51A(1)).

When making the Adoption Order or at any time afterwards, s.51A(2) allows the Court to make an Order requiring the adopters to allow the child to visit, stay with or otherwise have contact with a person named in the order, or to prevent a person named in the Order from having contact with the child.

In accordance with s.51A(3), the following people can be named in such an Order:

(a) any person who (but for the child’s adoption) would be related to the child by blood, marriage or civil partnership;

(b) any former guardian of the child;

(d) any person who was entitled to make an application for an Order under s.26 Adoption and Children Act by virtue of s.26(3)(c), (d) or (e) (ie any person who, immediately before the child was placed for adoption, had provision for contact with the child, held a Residence Order/had residence of the child by way of a Child Arrangement Order, or had care of the child by way of an Order made in the exercise of the High Court’s inherent jurisdiction with respect to children); and

(e) any person with whom the child has lived for at least 1 year (this need not be continuous, but must not have started more than 5 years before the application is made).

An application for an Order under this section either permitting or preventing contact with a child placed for adoption may be made by the following people, as set out in s.51A(4):

(a) the person who has applied for or has been granted the Adoption Order;

(b) the child; or

This means that any member of the child’s birth family wishing to make an application for contact with the child post adoption will need leave of the Court to do so.

In deciding whether to grant leave under s.51A(4)(c), the Court must consider the following factors set out in s.51A(5):

(a) any risk of the proposed application for contact/prevention of contact disrupting the child’s life to such an extent that they would be harmed by it;

(b) the applicant’s connection with the child; and

(i) the child; or

(ii) a person who has applied/been granted an Adoption Order

When making an Adoption Order, the Court has the ability to make an Order on its own initiative preventing a person from having contact with the child.

Where a child has been adopted, any application for contact is now to be made under this section and the Court will no longer be able to make an Order for contact under s.8 of the Children Act.

Jacqui Cox.

The Children And Families Act 2014 – Changes to...