By Uma Mehta, chief lawyer, London Borough of Islington


Public Law Outline

An important initiative being applied by the family courts in various parts of the country will be fully operational from April.



The Public Law Outline (PLO) will have implications for Children's Services and the way in which local authorities make applications for care and supervision orders under section 31 of the Children Act 1989.



The Review of the Child Care Proceedings System in England & Wales (May 2006) made a number of recommendations to improve the system for children and families in care proceedings. In particular, it encouraged early intervention to find resolutions before cases reach court and, when cases do proceed to court, identifies ways to improve the quality of local authority applications and improve case management procedures.



The Care Proceedings Review highlighted five key areas for attention:

- Helping families - ensuring that families and children understand proceedings;

- Better-informed resolution - ensuring that applications are only made after all safe, appropriate alternatives have been explored;

- Preparation for proceedings - improving the quality and consistency of section 31 applications;

- Improving case management during proceedings;

- Inter-agency working - encouraging close professional relationships.



The Care Proceedings Review's key findings are being implemented through;

- revised statutory guidance, namely the Children Act 1989 Guidance & Regulations Volume 1 - Court Orders - made under section 7 of the Local Authority Social Services Act 1970. The guidance will be issued nationally by the Department for Children, Schools and Families, and the Welsh Assembly in December 2007.

- A new Public Law Outline, replacing the current Protocol for Judicial Case Management in Public Law Children Act Cases, which will be implemented via a practice direction from the president of the Family Division in April 2008 (supported by rules which will follow). There will also be other practice directions including in the areas of emergency protection orders (with and without notice), experts and placement order applications.



With regard to initiative areas, elements of the PLO were tested in three places - London, Liverpool and Portsmouth - to inform the development of the draft. An additional seven areas have been added since June 2007: Oxford/Milton Keynes, Birmingham, Leicester, Newcastle, Warrington, Swansea and Plymouth/Exeter.





Protocol changes

The key changes to the case management protocol can be summarised as follows:



- Simplification and a streamlined process before final hearing - six stages are reduced to four with more emphasis on pre-proceedings preparations:

1. Issue and first appointment in the Family Proceedings Court to allocate and give initial case management directions.

2. Advocates' meeting and case management conference (CMC) to identify issues and give full case management directions.

3. Advocates' meeting and issues resolution hearing (IRH) to resolve and narrow issues and identify any remaining issues.

4. Final hearing to determine remaining issues.



- Front-loaded preparation pre-proceedings in accordance with new guidance from the Department for Children, Schools and Families;

- Enhanced advocacy preparation with advocates meetings before the CMC and IRH. Where an advocates meeting is held to conduct the discussions envisaged by the PLO, legal aid practitioners will be remunerated within advocacy services by hourly rates;

- New case-management imperatives on the identification of key issues and issue resolution;

- Significant reduction in unnecessarily repetitive documents - changes to the application form (C1) are being tested in initiative areas;

- Standard directions and a combined case management tool - a template case management order, to be completed by the advocates in advance of each case management hearing (CMC and IRH), approved or amended if necessary at those hearings;

- Greater control over the use of experts - the development of joint and team instruction and the 'dominant issue' concept of the necessary hurdle for a second opinion.



This will mean that the timetable for progressing the case will be agreed by the judge and the parties involved in the proceedings, according to the needs of the child involved. Each child will have their own individual timetable, which could be less than the previous benchmark of 40 weeks. This will mean that some cases will be fast-tracked and may be dealt with within, say, 20 weeks.



A final hearing date will not be set until the issues of the case have been agreed and narrowed down.





What the changes mean

For the judiciary: all designated family judges have been provided with briefing packs about the changes. Judges are expected to be far more proactive in case management. Family judges will have been trained by the Judicial Studies Board before 1 April 2008.

For local authorities: from December 2007, all local authorities across England & Wales have had to adhere to the requirements of the revised statutory guidance. The aim is for children and families to have a better understanding of issues in the case. More consistent use of early advice and support initiatives, such as family meetings, with a plan being filed and kinship options fully explored before the issue of proceedings, will be expected.



All directors of children's services have been contacted to and informed that Children Law UK will be running 25 seminars from January to March this year. It is hoped that those who attend will 'cascade' the training to their staff.



It must be emphasised that the local authority is not precluded from applying for interim relief if the child's welfare requires it.



In essence, the local authority will be expected to submit quality applications to the court, including all relevant assessments and reports that already exist. The final paperwork which should be submitted to the court, unless an emergency or urgent protection is necessary, is as follows (list is not exhaustive):



Documents to be disclosed from local authority's files:

1. Previous court orders and judgments/reasons.

2. Initial and core assessments.

3. S7/S37 report(s).

4. Relatives and friends materials (eg: a genogram, plan from FGC/family group meeting).

5. Single, joint or inter-agency materials (for example, health, education, Home Office approval/immigration status).

6. Letter(s) sent before proceedings have started.

7. Minutes of the meeting with family, following pre-proceedings letter(s).

8. Key local authority minutes and records for the child (including strategy discussion record).

9. Pre-existing care plans (for example, child in need plan(s) and child protection plan(s).

10. Any assessment(s) (residential or community-based assessments, viability/full assessments).



Documents to be produced for the proceedings:

1. Application form C1.

2. Initial social work statement (ideally, five pages).

3. Social work chronology.

4. Care plan arising out of the pre-proceedings meeting with family.

5. Allocation record and timetable for child.

6. Schedule of proposed findings.



For court staff: HMCS is still analysing the full impact of the new proceedings, for example on IT and court forms. Listing staff and case progression officers will need to ensure that they work closely with the judiciary to ensure hearings are listed around the needs of the child.

For legal practitioners: robust case management will mean that it will be important to ensure that the advocates discuss and narrow down the issues in the case before each hearing.



Practitioners will also need to ensure that the new template order is completed at each stage and filed with the court by 11am one working day before the relevant hearing.



Solicitors can expect to be consulted by parents who have received pre-proceedings letters from local authorities encouraging them to take legal advice and triggering the availability of legal aid.

For CAFCASS: emphasis on the importance of the pre-proceedings work done by the local authority means that an important role for the children's guardian at the first stage will be to identify what gaps still remain.



The court will be expected to be informed of guardians' views at each stage through a case analysis. The new model may mean less duplication of work between social workers and guardians.