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.