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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