This piece is aimed at social workers, but it isn’t exclusively for them. Basically, the law has moved very fast in care proceedings since I started writing this blog, and on Twitter yesterday there was a conversation about there not being an easy place for social workers to find out what they now need to know. So the idea here is two short(ish) pieces that tell you all of the important legal principles and then in part 2, what the specific tests are for each sort of order.
None of this is intended to be a substitute for getting legal advice from your own lawyer, it is just a guide to what sort of things the Court is looking for, and what tests they are applying. If you’re very confident about the basics, you can skip to Part 2 (though not immediately, because I am still writing it!)
The Acts
We all know, I think, that there are two main pieces of legislation involved in care proceedings.
The Children Act 1989
http://www.legislation.gov.uk/ukpga/1989/41/contents
and The Adoption and Children Act 2002
http://www.legislation.gov.uk/ukpga/2002/38/contents
There are a few others that come up occasionally – the Mental Capacity Act 2005, the Care Act 2015, the Children and Families Act 2014 and various mental health Acts, Housing Acts, if you’re really really unlucky Education Acts. And of course, the Human Rights Act 1998 permeates everything. In terms of the Human Rights Act – the big bits that you need to know is that a social worker, as part of the State, owes parents duties under the Human Rights Act – they owe parents an article 6 right to fair trial (which is not limited just to Court, but involves fairness in all decisions) and interference by the State with parents Article 8 rights to private and family life, which can only be done where it is PROPORTIONATE and NECESSARY.
Key principles of the Acts
- The Child’s Welfare is the Court’s paramount consideration when making any decision – it won’t be the only consideration, but it is the main one.
- The Court can only make an order if satisfied that doing so is better for the CHILD than making no order (the ‘no order principle’)
- Any delay is harmful to the child, and has to be justified (the ‘no delay principle’)
- The Court should try to make the least serious of the orders available to it, if that will meet the child’s needs (‘the least interventionist principle’)
- There’s a set of guidance of the main issues for the Court to consider when making decisions about children – the Welfare Checklist. Parliament has given us that as a valuable toolkit to reach the right decisions, and you stand the best chance of making the right decisions if you use it.
And from Human Rights, the key principles are :-
FAIRNESS – in all decisions, strive to be fair – take things into account, even when they don’t fit with your hypothesis or initial thoughts, listen to what parents have to say, be honest about what you are seeing, recognise change when it is happening, be willing to consider that you might be wrong. Try to approach the task of working with a family in the way that you would hope someone would work with you if the roles were reversed. Recognise that for a parent, the State can be a scary and powerful force – you might not feel powerful yourself, but be alive to the possibility that that is the way the State can come across. Imagine someone coming into YOUR home, looking in YOUR cupboards, criticising YOUR relationship. It might need to be done, but be aware that it doesn’t feel nice to be on the receiving end.
NECESSITY – is it NECESSARY to do X or Y? Not just is it helpful or useful or desirable, but did it NEED to be done? And even if it NEEDED to be done, did it NEED to be done in that particular way?
PROPORTIONALITY – looking at what you’re worried about and what you want to do about it, and thinking hard about whether what you want to do is proportionate to the worries that you have.
All of those principles really boil down to being a REASONABLE person – if you are reasonable, and try to do the job in a REASONABLE way, the Court’s are more likely to be receptive to what you’re saying and you are going to be less exposed in the witness box than someone who goes around like a bull in a china shop.
The threshold criteria
In order for the Court to make an Emergency Protection Order, or a Care Order or Supervision Order, or Interim Care Orders or Interim Supervision Orders, they need to be satisfied that the threshold criteria is met. If there’s no threshold criteria, the Court CANNOT make the order.
The burden of proof (who has to prove it) is on the Local Authority. It is for the Local Authority to PROVE that the child has suffered significant harm, or is at risk of such harm, NOT for the parent to prove that the child isn’t.
The standard of proof (how sure does the Court need to be) is the BALANCE OF PROBABILITIES. If a Court thinks that something is MORE LIKELY THAN NOT to have happened (in percentage terms 50.000001% or higher) then that is sufficient. If a Court thinks that the LA has NOT proved that, even if there’s a 49.99999999% chance of it having happened, then in law it did NOT happen. When it comes to factual issues, the law is binary – if it is MORE LIKELY THAN NOT to have happened, then it happened, if not, it DIDN’T. And if it is exactly 50-50 (which doesn’t happen often, but it HAS happened) then the burden of proof means that the LA failed to prove it was more likely than not, so it DIDN’T happen.
The threshold criteria itself
s31 (2)A court may only make a care order or supervision order if it is satisfied—
(a)that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)that the harm, or likelihood of harm, is attributable to—
(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii)the child’s being beyond parental control.
The likely to suffer has been quite tricky to resolve over the years – basically, if you’re going to say that a child is LIKELY to suffer significant harm, you need to :-
(a) Prove some facts
(b) Prove that those facts mean that there is a risk of significant harm
(c) Prove that it is MORE LIKELY THAN NOT that the risks involved ‘cannot sensibly be ignored’
So you don’t HAVE to show that the risk is MORE LIKELY THAN NOT to materialise. Sometimes, if the level of the possible risk would be very serious, there can be a lesser chance of it happening as long as there is a FACTUAL basis for saying that the risk exists and it cannot be ignored.
Case law
The Acts themselves only give you so much – most of the legal arguments are about how to intepret those Acts – what precisely does such and such a word mean, what has to be taken into account when deciding whether such and such applies. Rather than different Courts across the country having the same arguments over and over and coming to different decisions in different places, when an important point of principle is decided (for example – WHEN does the threshold criteria have to be satisfied? When proceedings were issued? When they finish? What if the child was in foster care for 2 months before issue – the child wasn’t at any risk in that placement…) a senior Court – the High Court, the Court of Appeal, the Supreme Court decides a case that deals with that point, and that’s the answer from then on (in this example, threshold has to be satisfied when the Local Authority ‘took protective measures’ – that could be by issuing, or it could be by a section 20 placement or written agreement)
The next time THAT issue comes up, the Court is able to say ‘well, that’s been decided now, there’s a PRECEDENT for it, and we’ll follow that’. The Children Act has been around for over 25 years and you would think that all of these technical and interpretation questions would have been sorted out years ago now, but they still keep coming, and occasionally the interpretations change or shift a bit.
For basically ALL of the things that a social worker might want to do, or ask the Court for, knowing what the Act itself says is just the tip of the iceberg. The really important information, and the wording that you are working to is set out in case law. And as I said, it changes.
Part 2 is going to tell you what the current case law says about the various tests – and I’ll keep this up to date when it changes. The law is moving quickly at the moment, particularly in relation to adoption.
I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.
If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.
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https://unbound.com/books/in-secure
suesspiciousminds 
I hate to say this – and I love your blog, and I really like the idea of this post, but isn’t it the Human Rights Act 1998?
God, you’re quite right. It’s been a LONG LONG day
If parents are willing to suffer gruelling court appearances and intrusions into their lives by social workers,psychos and the rest they must care for their kids and should surely usually keep them.Alas only one in four hundred care orders are refused (judicial statistics) so they nearly always lose.Brutal parents keep clear of courts so only those in care fight to keep their kids mostly alas in vain………..
The two things missing from your list are “compassion” and “love” and that is probably why social workers are the most hated profession in the country !
Who are the psychos?
A very interesting post I must say! TC (Looking forward to book and more of your blog!)
What happens when the SEN department and the health department who failed in their duty of care over many years in Liverpool decide to vindicate themselves by destroying paperwork and systems operations disks then histrionically re writing history ? What happens when the effect of the care order results in the abuse of a child with a vitamin deficiency and all their hair falls out , they are found to be severely malnourished and underweight , are covered in bruises and have head wounds in ” care ” ? What happens when a hate crime is committed towards a child with a disability and their single parent who has a walking disability , who eventually decided to home school their child after they had suffered miserably due to the failings by the SEN department in Liverpool and the homeschooling was so successful that it had the effect of highlighting Liverpool SEN departments failings ? What happens when a care order is placed on a child out of spite because they complained about the way they were treated at Alder Hey Hospital and the two departments in health and education simply had a strategy meeting to work out how to get out of what they had done ? What happens when the child , after being criminally neglected by the health and the SEN education departments is then made to stand next to Lord Mayor Roz Gladden wearing a circular very blonde disk of hair on their bald head and wearing clothes to conceal their severe weight loss , which is then presented to the court by the LA who state that the photograph was taken by a deputy mayor at an awards ceremony in an elaborate attempt to pervert the course of justice and to prevent the mother and child from making a medico legal claim for substandard medical care and educational neglect by the LA ? When does a care order become recognised as being a hate crime towards people with disabilities ? When does a care order become recognised as fraud , embezzlement of public funds , theft of compensation owed to victims and an attempt to deliberately neurologically damage children who have pernicious anemia caused by the nitrous oxide gas used on them during the needless operations and traumatic procedures they have endured , in order to create fraudulent funds for SEN education and CAMHS who intend to deliberately misdiagnose children suffering with vitamin b12 deficiencies / pernicious anemia with mental illnesses they do not have after first using the disturbing child protection process to induce the appearance of trauma and fear ? When will the care order system be recognised as child abuse on an industrial scale ? When will the care order system be recognised as slavery ? To deny a person the right to wealth and property is slavery . To take babies and children into care to supply children`s hospitals with victims is a crime against humanity , especially when they will be used to perform needless operations and procedures on against their will and will not be treated with the vitamin b12 they need , just as happened in the last holocaust in the concentration camps . It is also highly illegal and unethical to genetically alter babies over several generations using nitrous oxide gas to switch off vitamin b12 synthesis and using vitamin b12 lowering pharma medications in order to cause babies to be born pre term with a low birth weight , using forceps to damage the optic nerve and then using x-rays on babies heads with the intention of causing unnaturally early puberty , which can effect children as young as three and can cause six month old babies to have to endure false puberty and then refer them to social services to be abused by sadistic sex offenders . Justice Goddard who is a U.N monitor made it perfectly clear that paperwork was not to be destroyed by departments so why did Alder Hey destroy paper files and systems operations disks ? Why did the SEN department destroy paperwork ? Justice Goddard recently went to Canada and Australia and asked people who had been force adopted there between 1920 and 1970 to come forward and make statements about the sexual abuse they had been subjected to there . It seems that before being sent to Canada and Australia at about the age of THREE , where they were sexually abused , they had first been sexually abused in ” care ” in the UK . I don`t think anyone believes for one moment that the babies and children being kidnapped by the court are not being sexually abused in ” care ” . The care system is a baby fest for disturbed paedophiles and sadists .
I would say 50.000001% or higher you think it happened is not the same as evidence that shows 50.000001% or higher and especially were contrary evidence is not collected or considered, the problem I see is 50.000001% or higher evidence being treated in isolation to all other. I would like to see some requirement in law similar to criminal law requiring all avenues of enquiry to be followed up and for another requirement in law similar to criminal law on disclosure.
Put simply I believe to ensure the key points you make as above social workers need constraints similar to crown prosecutors to ensure fairness.
You have the crazy situation at the moment where parents have to do SARs to get copies of their files, which can take up to 40 days in law, just to see what the SWs have based their decisions on and in many cases the info is found to be an opinion which creates a supposed fact and in fact is misleading or an error.
I think that we lost a great deal when Guardians stopped bothering to go and read social work files, which used to be the starting point in cases, and would have cleared up that sort of nonsense early on. There is the duty on LA’s to disclose information contrary to their case – but it isn’t put into a process as clearly as Prosecution, where all of the material has to be inspected and particularised with that objective in mind. Maybe there should be a duty on LA lawyers to read the social work records and carry out that exercise (it would have to correspond with proper funding because it’s really time consuming to do it, and I’d have no hope of being able to do it on current volumes of cases, so would need more lawyers)
Exactly this. I sat in a room of people, half whom were out to get me the others whom had been lied to so that they could judge me and force me through a process to harass me not to continue with litigation. The basis of their CP actions was that I had written a letter (Pre-action Protocol for Judical Review) which outlines that the lack of support from the services (NHS & LA) was causing harm. Needless to say I now have a number of new cases I am working on. Two of which are Claims for Defamation for falsified reports submitted by the NHS whom the original PaP JR letter was for. I am receiving an excellent working education in the law however. LA have realised they are up s*** stream without a paddle and are backing off and I have been informed by the Social Worker that the CP Plan is going to be terminated shortly. If their legal department had seen their decisions and (no) evidence before they violated all the legislation above it would have never proceeded to S47.
Sorry to be pedantic, but criteria is plural; criterion is the singular. I get this a lot at work.
In my experience the threshold for obtaining an Emergency Protection Order is different from that for a Supervision or Care Order and often relies heavily on a single event. The court only has to be satisfied that there is evidence the child is in immediate danger. It does not have to decide about the causes of the risk or whether it is attributable to shortcomings in parental care. The simple fact of the likelihood of significant harm is enough.
If, after further assessment, the local authority proceeds with a Care Order this is an extreme measure and courts therefore require evidence that is stronger and more comprehensive.
Yes, I think that’s more about Re X (the case law) than the statute, which does not suggest that there’s anything higher than s38 threshold criteria to be satisfied. (The Court DO still have to decide that the harm is attributable to the parents though, as that’s part of s38. In practice, that element doesn’t get a lot of focus because it is only at that stage ‘reasonable grounds to believe’)
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