Important reading for all lawyers involved in care, particularly local authority ones (Thanks to @CelticKnot for putting this up on his twitter feed, which brought it to my attention)
Clearly someone with a gripe has contacted them with a well-thumbed textbook, to suggest that a Local Authority lawyer being present at a meeting that the parents attend should have the consent of those representing the parent to be present, and the Law Society don’t go that far, but do give some clarification as to where care needs to be taken.
I think they chiefly mean case conferences, rather than Letter before action meetings, since they talk of giving advice during the meeting, but I think best to work on the basis that it applies to any meeting held outside of the Court building.
3. The role of lawyers in local authority Children Act meetings
3.1 If you are representing the local authority
If you are employed by a local authority, you will be called upon to advise as well as to act on behalf of their local authority ‘client’ in care proceedings. One particular function will be to advise the authority on whether the criteria for initiating proceedings under the Children Act 1989 have been met.
The local authority solicitor also has a particular function in relation to Child Protection Conferences. Paragraph 5.84 of Working Together to Safeguard Children, a guide to inter-agency working to safeguard and promote the welfare of children (2010) states that ‘those who have a relevant contribution to make may include local authority legal services (child care)’.
In this context, your attendance may be necessary to offer expert advice to the Conference on any legal issues which may arise, but not to be a full participant in the Conference.
You should not address substantive questions about the matter under consideration directly to parents for two reasons:
- firstly, this could well mean asking questions of another solicitor’s client without his or her permission, and
- secondly, you should not ask questions of a lay participant at a conference without his or her solicitor’s consent which should more appropriately be asked in court proceedings.
Questions directed to other participants in the Child Protection Conference will normally be limited to prompting an expansion or clarification of information or evidence already given (see 1.3 Professional conduct).
Further, legal advice to the local authority on their agency role in care planning and on initiating or pursuing court proceedings should be given outside the Child Protection Conference.
However, if the conference is considering making a recommendation to the local authority that care proceedings or other court action should be taken, you may give a view to the conference as to whether the evidence would support such a step being taken.
You may assist in the decision as to whether the criteria are fulfilled for making a child the subject of a child protection plan.
You may also suggest to the Local Authority that it consider initiating or pursuing court proceedings. However, any decision actually to initiate or pursue court proceedings should be made by the local authority outside the Child Protection Conference.
Care planning is essential to meet the child’s future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to bring proceedings to court or alternatively to narrow the issues within care proceedings so as to avoid non-purposeful delay which is in itself harmful to the welfare of the child.
and at para 1.3 they make something explicit which most lawyers would have deemed implicit anyway
The Law Society’s guidance has been sought on the application to Local Authority Children Act meetings of Outcomes 11.01 and 11.04 of Chapter 11: Relations with Third Parties, in the Solicitors Regulation Authority Code of Conduct 2011.
- Outcome 11.01 : ‘you do not take unfair advantage of third parties in either your professional or personal capacity’
It has been suggested that a l ocal authority solicitor attending a Local Authority Children Act meeting may fall foul of this rule if they were to listen to the discussion at the meeting in which parents are participating and then use the knowledge of that discussion to advantage in the cross-examination of a parent in any subsequent court proceedings.
It must be reiterated that the purpose of a Local Authority Children Act meeting is to share information about the care of the child, the child’s need for protection and to plan for future care.
It is outside the remit of the meeting to consider allegations of abuse against the parents except in so far as this may be relevant in formulating a care plan to meet the identified needs of the child.
In other words it is important to ensure that inappropriate investigations of abuse are avoided. If you are representing the local authority, you are responsible for advising the meeting to keep within its remit. It is then the responsibility of the chair of the meeting to ensure that the meeting does keep within its remit.
If it appears to you as the l ocal authority solicitor that, at a meeting where parents are in attendance without their solicitor, there is a need to discuss information which may be in conflict with the parents’ interests, you should consider advising the meeting that they must withdraw while this information is discussed.
It should not be assumed that there will always be a conflict of interest between parents and child, or parents and the local authority.
The concept of working in partnership should be pursued until the contrary is indicated. Equally, it should not be assumed that withdrawal from a local authority Children Act meeting should be routine – it should only occur in rare circumstances and in cases where prior warning of potentially damaging admissions is given and in order to prevent criticism at a later stage.
- Outcome 11.04 : ‘ensuring that you do not communicate with another party when you are aware that the other party has retained a lawyer in a matter, except:
- (a) to request the name and address of the other party’s lawyer; or
- (b) the other party’s lawyer consents to you communicating with the client; or
- (c) where there are exceptional circumstances’
It has been suggested that if parents have retained a solicitor who is not present at the local authority Children Act meeting, then the local authority solicitor can only attend with the parents’ solicitor’s consent. It is the Law Society’s view that this Outcome is not relevant in the context of local authority Children Act meetings and therefore should not be used to determine who should and should not attend such meetings.
I personally have always taken the view that Letter Before Action meetings aren’t about exploring factual matters or responses to allegations, and I would tend to not attend if the parent is either unrepresented, or has a solicitor and their solicitor doesn’t attend, but it is worth noting what the Law Society say.
There’s then some advice for solicitors representing parents at any meetings involving Social Services (not just “for God’s sake take some billable work with you, or your firm will go bust doing this work for next to nothing”)
3.4 If you are representing the parents or persons with parental responsibility
It is good practice for local authorities to invite you, or a representative of your firm, to accompany parents as a supporter to local authority Children Act meetings and that local authorities should be encouraged to adopt this approach.
This will facilitate a full exchange of information and also avoid the stressful situation of parents having to face a meeting of professionals without any professional assistance themselves.
If you cannot attend in person but instead send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, and is fully informed of the circumstances of the case.
It is in any event, important to advise parents of the importance and benefits of their attendance at Local Authority Children Act meetings and to assist in preparing them for the meeting.
You should first discuss with the client who, if anyone, would be the most appropriate person to accompany them to the meeting (if it is appropriate and possible for someone to attend), and consider what the person’s role should be, subject to the agreement of the chair of the meeting.
If court proceedings are a possible outcome or these are already in existence, you should discuss with the client(s) the implications of giving information to the meeting, particularly if there is a possibility that they may later be cross-examined in court.
Where parents are unable to attend the meeting, you should encourage and assist the parents to prepare a statement to be read out at the meeting.
When you attend local authority Children Act meetings your role at the meeting should be outlined by the chair. In appropriate cases this might include clarifying whether or not you can ask questions or raise points on your clients’ behalf.
It is frequently the case that the chair of the meeting will meet parents (and their solicitors) before the meeting starts. Any queries over your role can therefore be dealt with at that stage.
There may be circumstances when it may be inappropriate for both child and parents to be present at the meeting at the same time. It will be for the chair to work out procedures to enable all parties to participate to the fullest and fairest extent.
However, where a young person decides to attend a meeting without being accompanied by a representative, but does not wish to disclose information in front of his or her parents, then it will usually be appropriate for the parents and their representative to withdraw from the meeting to enable the young person to participate.
In some cases, for example, where parents are separated, issues of conflict, competing interests and requests for confidentiality do arise as between parents or relatives attending at local authority Children Act meetings.
It may therefore not be appropriate for those persons and their solicitors to be present together during the meeting. Again, it will be for the chair of the meeting to determine appropriate procedures to enable the fullest and fairest possible participation of those concerned.
My Personal opinion of this is, I feel, is that most parents faced with initial case conferences or core group meetings should have some form of legal assistance, many parents facing care proceedings for the first time is highly daunting indeed and many parents obviously will not be aware of how serious the situation can become, I think that if solicitors or legal advocates were present from the word go then I believe that many cases would not need to be taken to court,
Case conferences can be highly fraught, that, compiled with obvious anxieties and very emotional times for the parents, they should have some support from a legal avenue, lets say the L.A’s plan is for court proceedings to commence, in the Case Conferences there would be in most cases up to a dozen other people present and when parents are there alone issues can and do go rapidly out of control, a legal representative would be able to keep the decorum.
over the years I have faced many cases where if the parents had simply been shown what was expected from them and they kept some decorum themselves I know most of the cases would not pass the doors of a court. sadly, it mainly comes down to finances, I wonder if the LSC on this would possibly be an avenue they could look at.
I have attended many L.A.C Reviews and case conferences in the past, as well as arranging meetings with the parents and Local Authorities to try and repair their working relationships, again, if from a parents point of view the case has ended up in the realms of courts the relationship is almost none existence, I can remember somewhere a Judgment from Thorpe LJ on this a few years ago.
It posed the question when Local Authorities use the none co-operation with professionals as a point to threshold.
Re: D  ECWA Civ 1000 at paragraph 15
“Mothers Hostility to social workers raises a problem which is all too familiar in the family courts. A parent whose capacity to care for his or her children in put into question is likely to resent it. Social Services on the other hand have to inquire and in some circumstances to take action, Often there will be an important question whether a measure of support the parent or parents can achieve good enough parenting, if the parent has become resentful of the social workers, whether for good cause or for bad, it will for that reason be that much more difficult to provide support. This very often leads to the parent being criticised for lack of cooperation with the social workers, and, in turn, to the parents resentment of the social workers’ intrusion growing rather than diminishing. It becomes a vicious circle. It can sometimes then be easy for social workers’ to think that an uncooperative parent is for that reason also an inadequate parent, but that one does not follow on from the other, whilst it may be regrettable, is not by itself any justification for making the care order, It is not uncommon for hostility and lack of cooperation to be confined to those who are perceived, however unfairly perceived, to be wrongly interfering in the family; and if that is the case it is quite possible to find other agencies who can establish a working relationship with the parent and provide the necessary support. To try to do this is part of the job of the social worker”
this Quote is an all too familiar occurrence that happens in may Case Conferences and core group meetings, the only way to avoid this, it to have the parents legally represented from the ground up.
#correction, it was Huges LJ and not Thopre LJ sorry
I remember one of the Circuit Judges I started in front of always expressing the view that “failure to cooperate” should not go into any threshold document or case summary. He would say, and he is right, “there is no duty on a parent to cooperate with a social worker”.
He would weigh it up when considering whether a parent had changed during the course of the proceedings, but had an open mind as to whether that change had to come about chiefly as a result of working closely and well with professionals or whether even a stubborn, difficult and hostile parent might actually make those changes for themselves and for their children in spite of their negative views towards social services.
I think there are some interesting studies (given the recent blog about research, I’m a bit dubious about how reliable they are) that suggest that the earlier in the process the parents get access to legal advice explaining what is happening and what the options available to them are, the more cases are successfully deviated away from care proceedings. I certainly do believe that parents having someone that they can talk to about the case away from the Local Authority is massively important.
The trouble is, the funding for that is poor, and less and less solicitors are willing and able to put in the work for free that they used to give to these families. And why should they do it for free, to be honest?
I would have liked to have seen the Family Justice Review recognise that solicitors attending case conferences and meetings for parents is an incredibly helpful and important role and one that should be properly funded – better to spend the money there on trying to bring about change and get help for the parents, than in arguing in Court when it is too late to make the changes work.
The savings that could be achieved for the Legal Aid budget in allowing solicitors/advocates funded through legal aid for their attendance in the initial stages of care proceedings far out weights the costs that would be incurred if the matter went to court, its quite apparent now that with the consistent increase in care applications month by month should have rang alarm bells by now, averaging 10% increase month by month will show that if what we have discussed can be achieved would mean there will not be any solicitors available to undertake this work due to their commitments in the courts.
I also think there is a worthy approach that Students studying Law, should be allowed to undertake the idea we are discussing here, take them out of the court rooms from time to time and allow them to see the whole picture, no better place to form a better understanding how the Care System operates.
I really must stop agreeing with you all the time Jerry. But this is not the right time to start, as I do agree with everything you say there.
Disagreeing with the social worker`s account of the case can also be seen as being non-cooperative, which is then used against the parent.