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Local Guidance in Respect of Initiating Legal Proceedings

1. Background

(With thanks to the Cheshire and Merseyside Regional Protocol.)

The Munro Review of Child Protection recommended extensive changes to the day-to-day delivery of child protection services. Greater emphasis has been placed upon early help and support, a better balance between professional judgment and central prescription and improved supervision and professional support of Social Workers who should be encouraged to adopt a 'healthy scepticism' when working with families with complex problems. These measures are intended to raise professional standards, promote shared responsibility with partner agencies, and give more time for direct work with children.

Munro also highlights the importance of evidence based social work that is underpinned by relevant research findings. In Safeguarding Children Across Services: Messages from Research (C Davies and H Ward), 2012 an overview of key messages from 15 studies is presented for social work practitioners who deal with some of the most complex cases. Some key messages from the research are listed below:

  1. Maltreatment is known to have a negative impact on children's physical, cognitive, emotional and social development and is linked with conduct and emotional disorders, delinquency and criminal behaviour, risk-taking behaviours, addiction and suicide. The consequences may persist into adulthood and be linked to adverse outcomes such as physical and mental health problems, reduced employment opportunity, social exclusion, intimate partner violence and abusive parenting;
  2. Neglect and emotional abuse are associated with the most damaging long term consequences for children. It is cumulative and pervasive and its consequences are especially severe in early childhood (0-3 years) where it can affect an infant's ability to form a secure attachment with an adult caregiver and to develop trust in others to provide a stable environment. Early detection and effective inter-agency intervention can make a difference to children's developmental progress and ensure that such maltreatment is sufficiently recognized and acted upon in a timely manner;
  3. In the first 6 months of a child's life, positive interactions are more important than interacting with specific people. At 7 months, however, a maltreated child starts to develop maladaptive attachments. Also at about this age, looked after children in short term placements may start to develop secure attachments to carers, the loss of which, particularly in the early years, can be sources of enduring distress. A recent study of attachment in adopted children found that those who were adopted before 12 months of age were as securely attached as their non-adopted peers, whereas those adopted after their first birthday showed less attachment security than non-adopted children. Therefore if children cannot live with their birth parents, early separation and speedy progression towards permanence are likely to be the least damaging courses of action;
  4. 1 in 5 babies who experience significant harm are doubly jeopardized - being left too long at home waiting for parents to improve and remaining too long with interim carers and experiencing disrupted attachments by the time they are finally placed for adoption. Proactive case management is therefore crucial to ensure that child development timescales remain at the forefront of social work assessment and planning;
  5. Repeated attempts at reunification should be avoided - this can be damaging to children's well being and could jeopardize the chances of achieving permanence via alternative routes;
  6. Parents who have not overcome complex problems involving substance misuse, alcohol misuse, mental health and domestic abuse by the time the baby is 6 months old, are less likely to do so within an appropriate timeframe for the child - although they may later make sufficient progress with parenting a subsequent child;
  7. Access to therapeutic parenting input early on is important - and likely to be more effective than dealing with the consequences of parenting issues at a later date;
  8. Adult services/Children's services play a key role in recognizing the risks to children's welfare and making appropriate referrals to Children's Social Care;
  9. Child protection planning should not exceed 6 months generally;
  10. The prospect or actuality of criminal proceedings should not hamper the timetable of Social Work case management generally.

Pre-Court Protocol: Key Principles for Local Authority Effective Practice

In view of such research findings, the Family Justice Review recommendations and the Pilot PLO, it is suggested that the following principles underpin a regionally agreed protocol on dealing with cases prior to the commencement of legal proceedings.

The Social Worker's statement should incorporate the critical issues which follow hereafter.

Critical Issues for all Social Workers pre-proceedings:

  1. Name of child/children and dates of birth (where they are living together with identity of school and any related half siblings);
  2. Name of mother and any partner (with address and date of birth and any other names);
  3. Name or names of fathers (with address and date of birth and whether or not there is Parental Responsibility);
  4. Name of extended family/friends involved or potentially to be involved as prospective carers or capable of providing assistance as to care (together with addresses as to those persons);
  5. Special needs/mental health issues of any party. Consider reference to adult disability/learning services;
  6. Special needs/mental health issues of any child including any medical issues in relation to the child;
  7. What is the timetable for the child and, in particular, what are the significant dates in the child's life in the next 6 months which are relevant to any plan for the child;
  8. Specify child protection issues in relation to any child.

    Examples:
    1. Alcohol;
    2. Drugs;
    3. Neglect;
    4. School attendance;
    5. Domestic violence;
    6. Home conditions;
    7. Chaotic lifestyle;
    8. Failure to control children;
    9. Mental health;
    10. Financial difficulties;
    11. Physical injuries;
    12. Emotional abuse;
    13. Sexual abuse;
    14. Ill treatment.
  9. What are the agencies involved; who has expressed concern/made referral, what is the nature of those concerns namely:
    1. School;
    2. Health Visitor;
    3. Doctor;
    4. Police;
    5. Housing Authority.
  10. Investigation may be required from those agencies together with disclosure from those agencies;
  11. Having identified the risks/issues can these be addressed by the carer(s) (or by the carer with assistance from extended family/friends or local authority);
  12. If the risk can be addressed by what specific measures.

    Examples:
    1. Improvement in school attendance;
    2. Improvement in home conditions;
    3. Drug testing/rehabilitation;
    4. Drink testing/rehabilitation;
    5. Mental health advice/psychiatric treatment;
    6. Parenting Course;
    7. Freedom programme;
    8. Anger Management programme.
  13. If risk can be addressed which agencies need to be involved to address risk? Have they agreed? What is involved? What is the timescale?
  14. Has an agreement been reached with the mother/father/carers to address specific issues of child protection/concerns? What is the timescale for the agreement? What is the process of monitoring whether or not the issues are being addressed? (There should be a time limited agreement so that any significant harm to the child is addressed.);
  15. Is a Family Meeting/Conference being held for the following purposes:
    1. To address the issues;
    2. To address support mechanisms;
    3. To obtain assistance from other agencies and/or kinship carers;
    4. To identify kinship/friends carers.
  16. If an agreement has been reached with the carers it should be specified what is to happen if the agreement is breached in particular:
    1. Have kinship carers been identified and assessed (as a contingency);
    2. Is the agreement clearly understood, particularly the trigger factors which may result in proceedings/removal of children/placement with kinship carers.
  17. Are there any services which can be provided or should be provided to address the issues? (e.g. parenting programme):
    1. What are those services?
    2. Are those services provided on a time limited basis? If yes, what?
    3. Who is to access those services and who is to monitor compliance with those services and report as to whether those services have addressed the risks.
  18. Is it clearly understood by the carers what is the aim / objective of those services and/or assistance provided?

2. Local Guidance in Respect of Initiating Legal Proceedings

  • Once it is identified by the Social Worker and Manager that it may be necessary to issue proceedings or take Pre-Proceedings Steps in relation to a family, a request for a Legal Planning Meeting should be completed and sent to Legal Services;
  • The case will be allocated to a Solicitor and a date will be set for a Legal Planning Meeting;
  • Prior to the meeting, the Social Worker will ensure that all relevant documents are sent to the Solicitor in time to be considered before the meeting (including minutes of and reports for ICPC/RCPC, strategy minutes, s47 investigations, Child and Family assessments, minutes of family group meetings). The Social Worker will also consider what steps would be necessary to avoid proceedings with a view to being able to complete a Schedule of expectations at the Legal Planning Meeting;
  • In the event that the case is in Intake and Assessment at the time of the request being submitted to Legal, Family Support will be immediately notified and the Social Worker from Family Support will attend the Legal Planning Meeting as any Pre-Proceedings Meeting and work will be undertaken within the Family Support Team, although the Social Worker from Intake and Assessment will also have to attend any Pre-Proceedings Meeting;
  • At the Legal Planning Meeting the Social Worker, Manager and Solicitor will address whether threshold has been reached for Care Proceedings. If so, careful consideration will be given to holding a Pre-Proceedings Meeting with a view to working with the parents to either avoid proceedings, narrow issues for proceedings and/or ensure that the necessary steps have been completed prior to proceedings being issued. It is expected that there will be a Pre-Proceedings Meeting in all but the most urgent case;
  • In the event that threshold is crossed and the decision is taken to hold a Pre-Proceedings Meeting, a detailed schedule of concerns and expectations will be drawn up within the meeting, which will set out what steps are necessary on the part of both the parents and the Local Authority. All assessments required by the Court to be completed prior to issue of proceedings will be part of the Schedule. Consideration will be given to whether any expert assessment is necessary. A date will be set for the Pre-Proceedings Meeting;
  • Following the meeting, the Solicitor will draft the Letter Before Proceedings and Schedule of Expectations;
  • The Social Worker will ensure that all checklist documents have been sent to the Solicitor, namely:
    1. Evidential documents including:
      • Previous court orders and judgements/reasons;
      • Any assessment materials relevant to the key issues including s7 and s37 reports;
      • Single, joint or interagency materials (e.g. health, education, Home Office and Immigration Tribunal documents).
    2. Decision Making records including:
      • Records of key discussions with the family;
      • Key LA minutes and records of the child;
      • Pre-existing care plans (e.g. CIN, CP and LAC Plans);
      • The Social Worker will hand deliver the Letter Before Proceedings to the parents, together with the Schedule of Expectations, list of Solicitors and information leaflet for the parents.
  • Once parents instruct Solicitors, the checklist documents will be disclosed to the parents' Solicitor;
  • Pre-Proceedings Meeting held as per agenda;
  • Minutes of the meeting will be prepared within 7 days and agreed by Social Worker, Manager and Solicitor prior to being sent to the parents' solicitor by Legal;
  • During the period of working with the family, the Social Worker and Manager will monitor compliance with the Schedule of Expectations carefully. in the event that there is any non-compliance, the allocated Solicitor will be informed and a decision taken as to the appropriate action which will be either:
    • Correspondence with the parents' solicitor;
    • Social Work Meeting (which must be notified to Legal and the parents' solicitor before taking place and which must be minuted);
    • Review Pre-Proceedings Meeting brought forward;
    • Decision to issue care proceedings in which case a letter must be sent to the parents informing them of this decision.
  • A review meeting will be set to take place no later than 12 weeks after the initial meeting. At the review meeting, the progress of the parents will be considered and a decision taken as to the appropriate action, which will be either:
    • Issue proceedings where there has been no progress or progress has been worse than anticipated;
    • Extend the review period where the parents are engaging and progress has been made, although this is not yet sufficient to end the Pre-Proceedings process. in this case, a date will be set for a further review meeting. This to be convened between 4 - 6 weeks;
    • End the Pre-Proceedings process where the parents have made good progress.

Appendix 1: Letter Before Proceedings (Meeting)

Click here to view Appendix 1: Letter Before Proceedings (Meeting).

Appendix 2: Schedule of Exceptions

Child's Name, Legal Meeting - Date, Time and Venue

Outline of Concerns (EXAMPLE) (THIS WILL BE THRESHOLD - parents proper names to be used):
  • Domestic Violence between M and F given the reported assault by F on M on DATE resulting in bites to M's nose, eyebrow and arm for which F is presently facing criminal charges and a call out to the Police when it was alleged that F had threatened M with a hammer whilst under the influence of cocaine;
  • M's ability to protect herself and child from domestic violence, given her present stated desire for F to return to the family home;
  • The volatile relationship between the parents;
  • F's drug and alcohol use;
  • M's alcohol use and historical drug use;
  • The parents' criminal records;
  • M's volatile behaviour towards professionals;
  • The parents' ability to work with Children's Services.
Expectations - M (Example - ensure these are focused to concerns above, time limited and measurable):
  • M to fully engage with Children's Services;
  • M to undertake an Assessment in relation to her parenting, capacity to protect and risk factors. This assessment will be undertaken by NAME OF SOCIAL WORKER and will be completed by DATE;
  • M to engage with alcohol services and to access any suitable support and/or treatment services identified. M to authorise the sharing of information with Children's Services in relation to her progress and engagement;
  • M to ensure that she does not drink alcohol whilst child is in her care;
  • M to ensure that child does not have any contact with F which is not arranged and supervised by Children's Services;
  • M not to have any contact with F and to ensure that F does not return to the family home pending the outcome of assessments;
  • M to engage with health professionals and to attend all medical appointments;
  • M to ensure that the health needs of the child are met and that the child attends for regular Health Visitor and GP appointments as required and that his immunisations are kept up to date;
  • M to allow the Local Authority access to her home on an announced and unannounced basis (state how often) and allow the Social Workers/family support workers access to the child;
  • M to co-operate fully with Children's Services and to make every effort to attend meetings with the Local Authority;
  • M to engage with the Freedom Project (give details).

Expectations - F (Example - ensure these are focused to concerns above, time limited and measurable):

  • F to fully engage with Children's Services;
  • F to undertake an Assessment in relation to his parenting, capacity to protect and risk factors. This assessment will be undertaken by NAME OF SOCIAL WORKER and will be completed by DATE;
  • F not to have any contact with child other than contact arranged and supervised by Children's Services;
  • F to remain resident at his bail address and not to return to the family home pending the outcome of assessments;
  • F not to make contact with M;
  • F to allow the Local Authority access to his home on an announced and unannounced basis;
  • F to co-operate fully with Children's Services and to make every effort to attend meetings with the Local Authority;
  • F to engage with a perpetrator programme in relation to domestic violence (give details).

Expectations - both parents

  • The parents are to provide Children's Services with details of any family or friends who may be in a position to look after the Children in the event that it is considered that they cannot care for them;
  • The matter will be reviewed at DATE AND TIME OF REVIEW MEETING;
  • If the Local Authority has serious child protection concerns in respect of the children before the next review then a decision may be made to issue care proceedings immediately;
  • If the parents reconcile or F has any unauthorised contact with child, then a decision may be made to issue an application to secure child's safety immediately.

Appendix 3: Your Child Could be Taken into Care - Leaflet for Parents

Click here to view Appendix 3: Your Child Could be Taken into Care - Leaflet for Parents.

Appendix 4: Letter Before Proceedings (Immediate Issue)

Click here to view Appendix 4: Letter Before Proceedings (Immediate Issue).

Appendix 5: Proposed Agenda for Pre-Proceedings Meeting

  • Introductions;
  • Setting out any special requirements (interpreter, sign language interpreter, presence of an advocate);
  • Outline the purpose of the meeting and establish ground rules and specify roles;
  • Outline duty of the LA to protect children, duty (where possible)to promote the child living with the family, balance of that against need to protect and promote welfare of the child. Explaining why it may be that a court application is necessary but that the LA hopes that the meeting may avoid the need for that;
  • Explain the concerns of the LA and referencing the Letter before Proceedings;
  • Initial views and opinions of the parent and specifying or clarifying any areas of agreement and disagreement;
  • Discuss what can be done to help improve the child's situation on the part of the parent including any assessment outcomes and gaps identified;
  • Discuss what services have been be provided to the family by the LA and can be provided to help i.e. promoting the idea of collaborative working between family and the LA in the best interests of the child;
  • Discuss the outcome of the Family Group meeting;
  • Identification of alternative carers(this will be a revisit to the concept as it will have been discussed previously within the assessment process);
  • Lead into a discussion of the proposed plan for the child including the need for any further assessments (the auspices of that plan i.e. Child in Need plan or Child Protection Plan and to cover the assessments which would need to be undertaken prior to issuing proceedings);
  • Break away for both parent and the LA to take advice from their respective lawyers;
  • Initial views from parent as to their thoughts on the plan/agreement;
  • Reconvene for focused discussion on the plan. Can an agreement be reached on the plan/agreement as it stands in draft or can revisions/amendments be agreed now to avoid proceedings;
  • If agreement can be reached to safeguard the children in the intervening period, set a specific date to review progress and obtain the parents' signature to the agreed working document;
  • If no agreement can be reached such that the LA believes it will have to issue an application with the court consider scope for discussion as to any issues which may be resolved now.

Appendix 6: Letter of Instruction to Expert (Pre-Proceedings)

Click here to view Appendix 6: Letter of Instruction to Expert (Pre-Proceedings)

Trix procedures

Only valid for 48hrs