Care Proceedings Advice


Some pages/links included on the Fassit UK site are in PDF format. Download the Free Acrobat Reader IMPORTANT: With effect from 6 April 2011. The Family Procedure Rules 2010 will come into force for all family proceedings, including adoption proceedings. The provisions of the Family Procedure (Adoption) Rules 2005 will be included in the new Rules. You can preview the new Family Procedure Rules and the Practice Directions supplementing them prior to 6 April 2011 by using the following link. Rules and Practice Directions Preview Please note that all applications made on or after 6 April 2011 must be made in accordance with the Family Procedure Rules 2010. To support the new Public Law Practice Direction (April 2010), NOTE: Ministry of Justice - Care proceedings reform (2010) A Care Order is an Order of the Court under Section 31 of the Children Act 1989. It allows the Local Authority to share Parental Responsibility for a Child and determine (after-consultation) important issues affecting a child. This would include where a child should live and with whom. A Local Authority cannot remove a child from a parent or anyone else with Parental Responsibility without their consent, (save by police protection- see below) unless they have an interim (temporary) or full (long term) Court Order. Parental Responsibility means all the rights, duties and responsibilities which by law a parent has in relation to a child. (Care proceeding Brochure) PDF Care Proceeding Advice 1.Need legal advice 2.What happens when a care order is applied for? 3.What happens at the first hearing? 4.What court orders can be made at the first hearing? 5.Split Hearings 6.The Care Plan 7.Review Meetings 8.Contesting an Interim Care Order 9.The Court Case Management Conference 10.Preparing for the final hearing 11.The Pre-Hearing Review 12.What happens at the final hearing? 13.How does the court make its decision 14.What orders can the court make? 15.Placements 16.Contact to your Children 17.How can I apply to end a care order 18 How can I appeal 19.Human Rights/European Court of Human Rights 1. Want legal advice If social services are starting care proceedings against you, they may not tell you about it until you receive a notice from the court through the post telling you when the first hearing is. You MUST get immediate legal advice. You MUST get a solicitor who is a member of the Law Society Children's Panel, and specialises in child law. The solicitor will act on your behalf and should instruct a barrister to represent you in court. You must push your solicitor to fight as hard as possible to help you. Child Law solicitors work regularly with local social services and some actually work for the local authority, guardians and parents at the same time. Some 4000 solicitors work for local government organisations in England and Wales. It is always worth thinking about getting a solicitor just outside of your local authority area. Many solicitors also tell you to do everything the local authority say because they know how mighty they are and what power they have, so they don’t like going against them. Please be aware of this. You can get a full list of Children Law solicitors in and around your area through the Law Society website - Finding a Solicitor 1. Type your postcode in the "Postcode/Location Box" 2. In the section "Country" press the arrow pointed down and select "England". 3. In the section "Area of Law" press the arrow pointed down and select "Children Law". 4. Press the "Search" button. This will give you a list of solicitors in that area. The ones with a green tick at the right hand side next to the phone number are the ones that specialise in Child Law. These are the solicitors you need to help you. People involved with care proceedings can get legal aid to pay their solicitors fees. You can get this no matter what income or capital you have. Back to the top 2. What happens when a care order is applied for? The local authority will apply to court for a care order on the grounds that your child has suffered serious harm or is risk of suffering serious harm in the future. It will be up to the judge to decide whether or not the threshold for this has been met. Care proceedings are usually started in the magistrates court and are dealt with under guidelines known as the Protocol for Judicial Case Management. To view these guidelines and print a copy: Courts-Service.pdf The guidelines state that care proceedings should be finished within a maximum of 40 weeks of the local authority asking for a care order. The natural mother of the children automatically has to be involved in the care proceedings because she will hold parental responsibility for the child. She will be known as a 'Respondent'. A father who holds parental responsibility for the children will automatically be a party to the proceedings and will be served with all the Court papers and invited to attend Court and put his view forward. In circumstances where a father does not have parental responsibility, initially he is not automatically going to be involved directly within the proceedings. He must be served notice of the case and it is then up to him to bring an application to the Court to be directly involved if he so wishes. Generally that application will be granted by the Court. Step parents and grandparents and other extended family members, unless they have parental responsibility are not automatically given notice of the proceedings nor are they automatically involved in the same. If these or other persons wish to be involved within the proceedings it will be up to them to issue an application to the Court to request permission to be involved. You will be told the date and time of the first hearing. Any person who is not party cannot come into the courtroom with you or see the court papers unless they apply for party status and it is approved by the judge. Only certain professionals have the right to see information about the care proceedings. You could be in contempt of court, which is prisonable offence if you disclose any information of this sort. Family courts are unjustly held in secret unlike criminal courts. Back to the top 3. What happens at the first hearing? The first hearing must take place within six days of the local authority application. There will be a guardian and a solicitor appointed to represent your child. They are usually from the government organisation CAFCASS (Children and Family Court Advice and Support Service)- see http://www.cafcass.gov.uk/ .They must prepare a written report for court. The court will normally follow the recommendations made in this report. It is our collective experience that CAFCASS can be extremely biased towards the wishes of social services, whether or not this is in the best interests of the child. Be extremely careful with any guardian that is appointed for your child and always make sure you have a friend/solicitor or independent person present at any meetings with them. The judge will decide whether the case should be transferred to another court, such as a County Court, and also how the case should be prepared for the final hearing. The judge will also decide whether or not to make an order. An interim care order can be made, which is an order that will say where your child should live and who should look after him or her until the final hearing takes place. At this stage the judge could decide to place your child in foster care. You must ensure that any family members willing to look after your child until he/she can be returned to you are at court and state this to your solicitor so they can make the judge aware. This way your child could remain with the birth family, probably under an Interim Residency Order. If a child is placed in foster care it is extremely hard to get them back. Social services have a legal duty under the Children’s Act 1989 to place children with family members before foster carers. You can dispute your children being taken into care and the court should set a date for a hearing for the dispute to be decided. This will give you a bit more time to prepare your case better. Back to the top 4. What orders can the court make at the first hearing? Interim Care Order (ICO) This is a temporary order to allow your child to be placed in the care of the local authority (usually foster care). Legally social services will share parental responsibility with you, but in reality they will always do what they think is best no matter what your wishes are. Social services have the power to decide where your child will live, even if you don’t agree with the decision. When social services make an application for an interim care order they must have prepared an interim care plan that sets out what they are planning for your child. They will ask the court to agree to this. For details on the Care Plan go the section Care Plan. Interim Supervision Order An interim supervision order does not give the local authority parental responsibility but it does mean that they must monitor how your child is being cared for either by you or someone else in the family who is looking after them Interim Residence Order This means that your child is placed with someone in your family until the final hearing. That person shares parental responsibility with you. The local authority do not have parental responsibility. Interim Contact Order This sets out details of what contact you and other members of the family will have with your child. For more information on contact go to section Contact. Back to the top 5. Split Hearings This means that the circumstances of the case justify the Court dealing with the threshold criteria first and on its own. The case would then continue after that had been resolved. If the Court finds in favour of the Local Authority there would then be consideration of what is next to be done. Specific considerations need to be given to whether a case is suitable for a split hearing or otherwise and this will need to be discussed in detail during the course of the hearing. Back to the top 6. The Care Plan When the local authority apply for a care order they are expected to provide a care plan for the court broadly following the government guidance recommendations below. Basically it should include information about the aim of the plan, a timetable of arrangements, the child's needs, including contact, the views of others, placement details, and management and support to be provided by the Local Authority. The plan will be presented to the court. Local authorities are required to take into account provisions of the European Convention on Human Rights particularly article 8 which guarantees a right to family life. A copy of the care plan must be given to the parents, child, others with Parental Responsibility and any other relevant people. You can find more on PR by visiting here: Parental Responsibility When a child is in care the local authority do not have to agree the plan for the child with the people with Parental Responsibility but they must conform to the government guidance recommends below:- Government Guidance: The plan must include:- -Where a child is looked after subject to a court order, the local authority should seek to work in partnership and reach agreement with the parents, wherever possible. -The child's identified needs (including needs arising from race, culture, religion, language, special education and health needs the aim of the plan and length of the placement the child will have. -other services which the local authority or other agencies will provide for the child/family -arrangements for the child to have contact with his or her family and to return home to live with them support for the placement -what will happen if the placement breaks down -in accommodation cases, the likely length of the placement and the arrangements for ending it -details of the parents role in the day-to day arrangements for the child -the extent to which the wishes and feelings of the child, his or her parents and anyone else with a sufficient interest in the child (including representatives and other agencies) have been obtained and acted upon or an explanation of why wishes/feelings have been discounted. -arrangements for input by parents, the child and others into the ongoing decision making process -the arrangements for health care (including consent to examination and treatment) and education and the date when the child's situation will be reviewed. Back to the top 7. Review Meetings It is a duty of the local authority to review the child's case at regular intervals via review meetings. People present are usually, a reviewing officer, health visitor, parents, social worker, representative of school, foster parent, etc. The first review must take place within four weeks of the date the child begins to be looked after; the second within the next three months, and the third, and any later reviews every six months. Before the review the local authority must find out, present and take into account the views of the child, parents, others with PR and any other relevant people. These people should all attend the review meetings. The local authority must keep a written record of the review in the case records, and details of the review must be given to the child, parents, others with PR and anyone else the local authority considers should have this information. An Independent Reviewing Officer will chair the meeting (IRO). They will tell you they will ensure that your views as parents and family members are presented. But in reality your views are often not even considered. However, you can put down your views in writing, especially if you cannot make the meeting. Ensure the Reviewing Officer is given them, as they still have a duty to present your views. If you are unhappy about any aspect of the plan itself you should tell social services, put it in writing, and inform your solicitor. If your child is old enough “Gillick Competent” (see below) they can ask for the case to be referred to a Children’s Rights Officer/Advocate (not CAFCASS) also an independent person can support the child through their disagreement with the authority. Where your child makes a complaint, they have the right to an advocate to assist them with this. The best agency to help your child in this respect is:- Voice - Advice and Advocacy Service for Children Head office Voice, 3 20 City Road, London EC1V 2NZ Tel: 020 7833 5792, fax: 020 7713 1950, email: info@voiceyp.org Website: Voice Gillick Competent - The law was set out in the case of (Gillick v West Norfolk and Wisbech AHA [1986] AC 112). It means that the child has sufficient understanding in relation as to what is happening in a given situation and has the capacity to take their own decisions. This gives a child who is Gillick Competent the right to consent to medical treatment, instruct legal representation, etc. Back to the top 8. Contesting an Interim Care Order You can contest the interim care order being renewed. Social services have to legally apply to the court every 28 days to renew the Interim Care Order. You either instruct your solicitor to say you want to contest the renewal or send a letter into court stating that you want to contest the next renewal of the care order. There will be a hearing date set and you must prove at that hearing why you think the care order should be cancelled and your children returned to you. The only disadvantage of doing this is that you will have already used your arguments which may be stronger at a final hearing. But you can also use an interim hearing to discuss contact arrangement for you and your family with your child if social services are denying you and them proper contact arrangements, or are reducing your contact to save money and blaming you for it as they usually do. If you decide to wait for the final hearing instead then there will be a series of hearings over the next few months, where the court will continue to monitor what is happening with your child. The court will hold a meeting called a Case Management Conference. Back to the top 9. The Court Case Management Conference This is a meeting to decide what evidence the court will need for the final hearing. You can attend. It will give instructions about, among other things:- • What statements, reports and assessments it needs, who should prepare them – they may include social workers, independent social workers (but they are usually not independent), also family centre workers, teachers and other school staff, doctors, health visitors and any other professionals working with the child or your family. They will decide a date on when these should be filed to court. • What and when statements should be filed by experts such as child psychologists/adult psychiatrists, etc. • The court may want information about your health disclosed, such as the medical records from your GP. Due to the laws in the Data Protection Act they can only have access to these with your agreement. If you allow them to give a report to the court then social services, the guardian and their legal advisers will see the report. • Whether the case should be transferred to a higher court IMPORTANT: It is our collective experience that many Family Centres who carry out assessments, such as NCH ones often work in partnership with the local authority and are extremely biased towards them. We have received many enquiries from parents who have been assessed at these places and have stated how they have lied in reports and even perjured themselves at court just to provide evidence to support whatever social services are proposing. Also, many experts, such as psychologists are from a core group used all the time by social workers, and are also often appointed by court. They get extremely well paid and are loathe to go against social services recommendations as they know the local authority will not want to use them again in proceedings. They also base their reports and assessments on the information presented by social workers, which is in itself usually full of lies and exaggerations. Our advice would be to be very careful and very wary of what you say to them. Try and find one that you know is independent. Back to the top 10. Preparing for the final hearing • You will be asked to do a statement, which will be compiled by your solicitor. You should write in as much evidence as you can that will help you. You should get statements from as many professional people as possible who will support you as a good parent. For example from your GP/Health Visitor/Teacher. These should be given into court so that these people can then go as your witnesses at court on your behalf. Do the same with any other members of your family to show what support and help they can give you. Get letters if you can't get statements • Have a folder or special place at home where you keep all information about the case, like notices from court, letters from the solicitor, etc. Always keep all letters from social services and show them to your solicitor if necessary. • Get a notepad and keep a note of all telephone calls, conversations and meetings with social services and the guardian, and also a brief outline of what has been said with other professionals. This will help you remember everything when preparing your statement for the final hearing. Also you can have clear details of any injustice. • If the experts reports have stated things that you do not agree with should go through the statement and highlight what you disagree with. Go through this with your solicitor. You can then have a section in your final statement headed “My response to statement from Dr………….” and write in all what you disagree with. This will help your barrister when cross examining the experts at court. • Keep notes of what happened at contact visits or sessions at family centres. As above, if it is a contact centre working in partnership with social services, the final report about the contact you have had with your children may well not reflect the actual good contact you may have had with them. • Before you go to a meeting at court, or with your solicitor/barrister always make a note first of all the important things that you want to say or ask. Always get to court at least ½ an hour before the time of hearing so you can have a good talk with your solicitor/barrister first. There will often be discussions with your barrister/ social services/ guardian before the hearing where they usually try and agree on different issues to present to the judge before the hearing takes place. This can be very annoying. • If you have a problem getting around, or some other disability, talk to your solicitor to make sure all meetings and visits are at a suitable place. Back to the top 11. The Pre-Hearing Review Two weeks before the final hearing the court will probably hold a pre-hearing review to discuss any remaining issues, and timetable all the witnesses, etc for the final hearing. Whether or not there is a final hearing the court should read all the papers, statements, reports and the care plan before the hearing starts. Back to the top 12. What happens at the final hearing? Before the hearing takes place your barrister/solicitor will discuss with you anything that social services are proposing, and new plans, etc. It is very important that you understand what they are suggesting to you before you respond. Do not sign any papers unless you are in absolute agreement with what is written. If you agree with what is written the solicitors/barristers (usually social services ones) will write out an agreement and give it to the court. The court may ask some questions before deciding whether to agree to the plans. If the court approves the plans this is known as a consent order. If you disagree the court will hear evidence from any witnesses who have been called by either side. The local authority will put its case first, and you will be asked to give evidence. You will probably have to stand in a witness box and will be asked questions by your solicitor/barrister and also the local authority/ guardians/ solicitor/ barrister. The guardian always gives her evidence last. The court will listen to everyone’s evidence and then decide what order, if any to make. The final hearing can be a couple of days or can go on for a few weeks depending on the complexity of the case. Back to the top 13. How does the court make its decision? The court can make a care/supervision order only if it believes that the “threshold criteria” have been met. The “threshold criteria” means that: • Your child has been seriously harmed or is at risk of being seriously harmed in the future; and • This harm is because the care you have given your child has fallen below what would be reasonable to expect a parent to give, or because your child is out of your control. Harm includes not just the child being ill-treated themselves, but also a child “seeing or hearing the ill treatment of another, or so called emotional abuse. If the judge finds that the threshold has been met it will decide what order to make after considering all evidence. It will decide what is in your child’s best interests according to the “welfare principle” and a list of factors known as “the welfare checklist”. Back to the top 14. What orders can the court make? Supervision Order This means that you remain responsible for your child’s care but social services have the power to supervise how you care for your child. This way your child goes home with you. A supervision order lasts up to one year unless the local authority apply for an extension (which can at most be for two years). If a supervision order is made the local authority will generally set out what is expected of you. Care Order This is an order that places your child in the care of a particular local authority (foster-care). You share parental responsibility with the local authority on paper, but in reality they usually just override your wishes anyway. The law states that they must consult you first, but this regularly does not happen. The court must decide how and when you and other family members such as other brothers and sisters will see your child. This is usually totally inappropriate and social services will then try and reduce it further afterwards. If the court does actually grant extended family contact, such as with Grandma, Granddads, Aunties and Uncles it is only usually indirect contact, for example sending a Christmas card once a year. For more information about contact see section Contact. The local authority must hold regular case reviews every six months to consider how their plans for your child are going and if any changes are needed. An independent Reviewing Officer (IRO) will again be appointed to look at the care plan. You are allowed to attend these meetings. A care order will remain in force until your child is 18 years old, unless the court changes the order, or if it is discharged. Residence Order This would mean your child would live with someone else, such as a member of your family, without social services being involved. It would give that person parental responsibility for the period of the order. Special Guardianship Order For full information about this order please go to: Special Guardianship Orders The law on adoption changed at the end of 2005. Local authorities can only place your child for adoption if they have a care order and you give your consent. If you do not give your consent the local authority can apply for an easily get a placement order, which will allow your child to be forcibly adopted whether you agree or not. (For more information on adoption please see Adoption Policy ) Back to the top 15. Placement The local authority has a duty to safeguard and promote the welfare of each child they are looking after, whether they are in care under an emergency protection order, or accommodated in care. When they make a placement they must place the child with a parent, other person with parental responsibility, a family member or other person connected with the child's welfare. If the child is to be placed in foster care then they must ensure that the child is matched with a foster carer capable of meeting his/her assessed needs. Wherever possible a child must be placed near his/her home and with brothers and sisters. (This often does not happen). Where a child is disabled the local authority must make sure the accommodation is not unsuitable for his or her particular needs. More on Disabled Children The social services must (in most cases) arrange for the child to undergo a medical examination by a qualified medical practitioner prior to the beginning of the placement, or as soon afterwards as possible. A young person of sufficient age and understanding can refuse this. KEEPING CHILDREN WITHIN THE FAMILY The local authority have a duty to "place the children with his/her parents or wider family and friends, unless this is not reasonably practical or consistent with their welfare. They must consider placing a child with a relative or friend before placing with a foster family. The local authority are able to place a child immediately with relatives and friends for up to six weeks provided they have interviewed the person, inspected the accommodation and obtained information about others living in the household. The relative/friend who is caring for the child must make a written contract with the local authority agreeing to:- -care for the child as if he/she were a member of the persons family -permit any person authorised by the local authority who made the placement to visit the child at any time -allow the child to be removed by the local authority, or the child's local authority at any time -keep confidential the information they gat as a result of the placement and, -allow the child contact with anyone the local authority agrees to, or anyone who has a Contact Order from the court If the placement continues beyond six weeks, the local authority will need to undertake a full assessment to approve the carer as a foster carer for that child. This includes undertaking police checks. It also checks the ability of the relative/friend to care for the child. This takes approx. 12 weeks. (Expect the report often to be biased against the relative/friend as it is a social worker which carries out the assessment). If the child is "looked after" by a local authority, they have a duty to pay the person caring for the child, even if is a relative, but they have discretion as to how much they pay, and will be based on locally set rates. A high court judgement in 2002 declared that it is unlawful for local authorities to fix these rates so that related foster carers receive allowances at a lower rate that non-related foster carers. NOTE:- Not all local authorities have changed their foster care payments for related foster carers in accordance with this judgement. If your local authority pays related foster carers less than non known foster carers, you must call to their attention the decision cited above, and advise your solicitor of this immediately. Local authorities are only under a duty to finance a placement with relatives if THEY place the child. If it is a private, voluntary arrangement between parents and relatives then the parents are liable for his/her maintenance. When a residence order is made, the local authorities have the power to pay a residence order allowance but they are under no obligation to do so. Reasons for Children to stay within their birth families:- 1. A principle of the Children's Act, confirmed by research (see below), is that there are unique advantages for children in experiencing family life in their own original families, and therefore every effort should be made to preserve the child's home and family links. 2. A principle of the Children's Act, confirmed by research (see below), is that development of a working partnership with parents is usually the most effective way of proving alternative care for their children, instead of removing them. Almost all parents should be expected and helped to keep their responsibilities to their child and remain closely involved. 3. Give as much information as possible about family members and friends who may be able to offer help with caring for your child, any groups you can go to for help, or anything you will do alternatively to help you. 4. The 1989 Children's Act fundamentally states that the best place for most children to be brought up is in their own family, with the support from the state when the child is in need. This is reflected in the Regulations which provide for children to be placed with their families before being placed in foster care, with people the child does not know, unless this is not consistent with the child's welfare. 5. Research has shown that children do better if they are placed with relatives rather than strangers. 6. Multiple moves in placement are likely to be detrimental to a child's well-bing but they are common for looked after children. When children are placed immediately within the family, there is less likelihood of multiple moves. 7. If the intention is for children to return to their parents, this is more likely to be successful if they have only one placement in care. Clearly, if they have been kept within the family network, then they are more likely to have one placement only while they are being looked after. 8. Research has shown that contact with parents and siblings are maintained more successfully if children are placed with relatives. There is also the provision of a residential setting where whole families can be assessed and given guidance and help without the need for the family to be separated. Where care proceedings are pending, a residential assessment can be directed by the Court. Some local authorities have their own centres while others are run by charities and other independent organisations. Where the local authority considers that the child should be placed with their parents but the parents are homeless, the local authority has the power to provide housing to the child and the family together. PLACEMENT IN FOSTER AND RESIDENTIAL CARE If the local authority does not place your child within the family or with friends your child will normally be placed with foster carers or in residential care, normally a "community home" with other children. Whatever placement decision is made, it is important that you should always be consulted. The fostering service has a duty to: make available foster carers who provide a safe, healthy and nurturing environment; ensure fostering services value diversity and promote equality; ensure children's opinions, and those of their families and other significant people are sought over all issues which are likely to affect their daily life and their futures. They must also promote contact with the family members of children who are looked after, so long as this is consistent with the child's welfare. If your child is unfortunately going to be placed with foster carers, ask the social worker if you can meet with the foster carers in a neutral setting. You will hopefully be able to settle your mind a little bit. You will also be able to share information about your child, and find out about the carers themselves. PLACEMENT IN AN INDEPENDENT SETTING Older children can be placed under section 17 of the Children's Act, for example in bed and breakfast. In these circumstances, the child is considered not looked after. However, government guidelines disapprove this practice unless it is arrived at as a clear decision that this is the best way of meeting the particular child's needs, following a detailed assessment of their circumstances. (Social services find it very hard to place their many older children in care, and although this practice is discouraged it is used often). PRIVATE FOSTERING A child can be placed with someone who is not a local authority foster carer or a relative (as defined by section 105 of the Children's Act), as a private fostering arrangement. This must be for a period of no more than 28 days. Parents have a right to arrange this because they have PR and the carer can exercise day to day PR by arrangement with the parent. This placement must be monitored by the local authority under the Private Fostering Regulations. EMERGENCY SITUATIONS Sometimes, in an emergency, local authorities call family members and ask them to care for children on a temporary basis. In some cases local authorities then say that they were just facilitating a private arrangement, not "placing" a "looked after" child. In this respect they do not have to pay the person caring for the child and it also makes it easier to remove the child from their family. If the child was placed with a relative in an emergency (and it is unclear whether the child is looked after and placed with the relative by the local authority or the placement is private), the local authority may say they are not under an obligation to finance the placement. In this situation the relative must be prepared to argue that they understood the arrangement to be a placement by the local authority for which they would receive financial support. If the authority agrees, the checks and agreements relating to immediate placements listed above will then apply to the relative. If the social services disagree, you can make a complaint. Back to the top 16. Contact The Local Authority has a duty under the Children’s Act 1989 to endeavour to promote contact between a child and its parents and other significant persons unless it is not reasonably practicable or consistent with the child's welfare. The government issued guidance which states "for the majority of children their interests will be best served by efforts to sustain or create links with their natural family. "Contact" has value for the child, even when there is no question of the child's return to their family. The Local Authority has no power to prevent contact taking place between a child and certainly its parents unless the Local Authority has gone to the Court and secured an order from the Court giving it permission to prevent this contact taking place. They may suspend contact for up to seven days in an emergency, "where they are satisfied it is necessary to do so in order to safeguard and promote the child's welfare". If they do this they must explain in writing why contact is suspended, for how long, and how their decision can be challenged in court. There is specific provision which identifies how much contact should be provided to a parent, especially during the period of time that the case is progressing. The contact offered to a parent during course of the proceedings and afterwards is usually totally unacceptable. A parent and any other family member/person prominent in the child’s life can make an application to court for a contact order. In this case the court is issued to request that it defines the level of contact to be provided. The Court can then, having heard evidence on this issue, make an order which specifies the frequency and duration of any contact for the applicant. You should ask to be able to speak to your children on the phone. Social services usually try to stop this. Some kind foster parents will let the children phone you themselves, without involving the social services, but most don't. To stop you phoning your own children social services may use the excuse that they can't be sure what you are saying to them - "oh yes you might be telling them the unthinkable - you want them home!" To get round this you must ask if the foster parents have a speaker button on their phone where they can listen to the conversation, or if they have a telephone extension where they can listen. Then they can terminate the call if you say anything they consider wrong. Also, ask if you can compile a video for the children with all the family and friends on reminding the children how much you all love them. The children can play the video and be reminded of you all the time then. Be careful not to talk about them coming home or it won't be allowed to be given to them. Ask if the foster parents can do a video back). Regarding expenses incurred by anyone of the above having to travel to visit children in care. Social services may (but not must) make payments to cover this cost if it appears to them that the visit could not otherwise have been made without "undue hardship", and that circumstances justify payment. Payment can be made for things besides travel, such as meals you have to buy or the cost of a special outing. It could be paid to anyone visiting the child, not just parents. The local authority must find out and give "due consideration to" the wishes and feelings of any child they are looking after, their parents and those with any parental responsibility, and other significant people when making any decision about the arrangements for contact. They must also discuss the arrangements with the family and must record them in the written care plan. The arrangements must be reviewed as this is part of their general duty. (If you are unhappy with any restrictions imposed on the contact arrangements, ask for the reasons in writing and speak to your solicitor. If you want the arrangements to been changed for any reason ask for this in writing, giving your reasons, and ask for a written reply. If you are not happy speak immediately to your solicitor). The child's whereabouts must be disclosed to those with parental responsibility, but the local authority is not obliged to do so if it has reasonable cause to believe that doing so would prejudice the child's welfare. (Social services often don't tell you where your children are. You can always find out yourself where your children are by getting a friend or relative that the social services don't know to follow the children home from the contact centre. This must be done discreetly). Research says the following:- (and can be used as arguments in court) -Contact is the key to children returning home early from care. -Children actually do better if they are visited frequently by their family despite the stresses this can bring. -Children need contact with important people from the past in order to develop their sense of identity that is essential for their well being. -Continuing contact protects children against the more adverse effects of public care. -There are fewer breakdowns of foster placements when contact is maintained. It is more possible than many social workers believe to find foster carers willing to encourage contact. Barriers to contact stem more from the attitudes of social workers than foster carers. -Continuing contact with grandparents is almost wholly beneficial, and is particularly important for older children. Research from publications:- Long Term Foster Care 1984, Barnardo's family placement and Access, Foster placement breakdown, Sibling Groups and social work, Child placement: principles and practice, Children going home; the Reunification of Families. Back to the top 17. How can I apply to end a care order? If your children have been under a full care order for 6 months or over since the care order was made by the judge then you are legally entitled to apply to court to have the Care Order discharged and your children returned to your case, which will happen if it is granted. You should speak to your solicitor about this. You may be able to receive legal aid to pay your solicitors costs, but you will not automatically get it. If you have asked the court to discharge the care order in the last six months then you must get the courts permission to apply again. You will have to show that it is in your child’s best interests for the care order to be discharged. The court will then look at any current risk to your child. Prepare well for this hearing and gather as much evidence as you can to support you. The Children’s Act 1989 states:- 39.—(1) a care order may be discharged by the court on the application of— (a) any person who has parental responsibility for the child; (b) the child himself; or (c) the local authority designated by the order. You can view a copy of the Children's Act 1989 Please Note: Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Children Act 1989. Those changes will be listed when you open the content using the Table of Contents below. Any changes that have already been made by the team appear in the content and are referenced with annotations How to apply to discharge a care order (Parents or a person with PR) You can apply to discharge a care order through a solicitor, or you can apply yourself by completing forms C1 (Application for an order) and C2 (Application to commence proceedings). You can download these forms through the HM Court Services Website – HM Court Forms For help in completing these forms click here These forms are also used for applying for contact, residency, etc. When you have completed the forms they should be taken into your local County Court (filed with the court). The fee is approx. £120.00. The court clerks should help you with who you need to send copies to. You will be given a date for a hearing in court. You can be represented at court by a solicitor, or a friend or family member support you. You can also represent yourself. How to apply to discharge a care order (Children) An older child who is under a care order, such as a child in foster care can also apply themselves to have a care order discharged. They are entitled to legal representation. We would advise any child in care who wants to return home and is not being heard to contact Voice, a really good organisation who will provide them with help and support so that their wishes are heard and respected:- Head office, London & South East 320 City Road London EC1V 2NZ T: 020 7833 5792 F: 020 7713 1950 E: info@voiceyp.org Website: Voice East region and Hertfordshire advocacy service: Regional Manager - David Clarke 42A Church Street Hatfield AL9 5AW T: 01707 270169 F: 01707 276097 E: hertfordshire@voiceyp.org 1st Floor, Venture House, Venture Court Boleness Rd, Wisbech Cambs PE13 2XQ T/F: 01945 584748 E: david.clarke@voiceyp.org North: Regional Manager - Alice Frank Suite G15, Redlands, 3-5 Tapton House Road Sheffield S10 5BY T: 0114 267 9389 F: 0114 267 1735 E: alice.frank@voiceyp.org Swindon: Voice Swindon Children's Rights Service Room 2, Oaktree School Annexe Priory Road, Park South Swindon SN3 2HA T: 01793 487 490 E: swindon@voiceyp.org Back to the top 18. How can I appeal? You can appeal to the High Court if you do not agree with a decision made by a judge in a lower court such as a county or magistrates court. You can even appeal a freeing order for adoption. It is important that you appeal within FOURTEEN DAYS OF THE JUDGEMENT that was made in the County/Magistrates Court. If it is past 14 days you will need to get "leave" which is permission to appeal out of time and permission to appeal out of time is more often than not refused. You can apply though a solicitor. A full list of Children Law solicitors in and around your area can be found through The Law Society website - Find a Solicitor. You can also apply yourself without a solicitor. This is called applying as a litigant-in-person. The Legal Aid Services commission more than often refuse to give legal aid for these sorts of appeals. This is because the judge often says that there are no grounds to appeal on and the Legal Services Commission feel that appeals do not merit their funding. Therefore in this instance you should apply yourself as a Litigant-in-person. You should Contact the Civil appeals division at the Court of Appeal and tell them that you want to appeal a care/placement order and they will put you in touch with the right people. You will be sent out an information pack which contains an Appellant's Notice (Form N161) which you have to fill in. Also a Court fees exemption form but to claim Court fees you need proof of income such as a letter from the Inland Revenue to say that you are claiming tax credits or other benefits. You can download this form and guidance notes on completing it (Form N161A) from the HM Courts Services Website. You can also get a copy from your local county court, or from Clerk of the Lists, General Office/Appeals Office, General Courts of Justice, Stand, LONDON, WC2A 2LL. It costs £100 to make an application for appeal. (Note: All fees correct from time of publication) Being the person making the appeal you will termed as being the Appellant. The local authority will be the Respondent. When you are putting together your supporting documents to be filed with your Appellants Notice please be aware that if you have any new evidence that you wish to use, which was not considered in your previous hearing at the county/magistrates court you have to ask the appeal courts permission to use this. The judge will consider this before the hearing takes place. You cannot raise any issue at the appeal hearing for which permission at the lower court was expressly refused without the appeal courts permission. If you wish to ask for the appeal courts permission you must do so as soon as possible as there are time restraints on this. You must also let the respondent know what you intend to do. This again will be considered by the judge before the appeal hearing. If you are doing the appeal yourself as a litigant-in-person you will need to prepare what is called a Skeleton Argument which is a basic outline of what has happened in your case. The Skeleton argument will accompany your Appellant's Notice. When preparing your appeal bundle the Appellant’s Notice is usually the first pages of the bundle. Then it is followed by all of the judgements and orders that were made at the previous hearings in the case. The Appellant's Notice will have to be served on the SS as a "Notice of Appeal". If you do go to the Court of Appeal and get a hearing you should be entitled to legal aid for a solicitor to represent you at the hearing. Once your application is sent to the Court of Appeal you will get allocated a Case Manager. The case manager is not qualified to give legal advice but he/she will check your bundles. All bundles in the Court of Appeal MUST be paginated and indexed. Paginated and indexed means that every single page must be numbered and there MUST be a list of every single document that is in your bundle. What happens after you have filed your appeal? The court will issue your appeal and serve (send) copies of any documents you have filed to the respondent (local authority) within 7 days of the date you filed. Usually the procedure in the Court of Appeal is that the judge will make a decision "on paper" this means that the judge will read the bundles and make a decision whether or not to give you permission to appeal based on the evidence before him that has been presented. He will then decide whether or not you have permission to appeal out of time this is usually done if the application for leave to appeal is made past 14 days of the original final hearing. He may do this without you having to attend a hearing. You will be sent out an order setting out the judges decision. If the appeal is granted the court will send you notice of the date of the hearing and also a note of any of the things its wants you to do to prepare for the hearing (directions). Your hearing will usually be at the Royal Courts of Justice at The Strand in London. What you can do if the judge refuses permission to appeal? If the judge refuses to grant you permission to appeal without a hearing you can then ask for that decision to be reconsidered at an oral hearing. Your request for an oral hearing must be made to the appeal court within 7 days of you receiving the decision of refusal. You do not have to pay another fee for this. You must send the respondent a copy of your request. The court will then send you a date of the hearing. What can I do after this? After the Court of Appeal which is the High Court you have to write to the Judiciary at the House of Lords and petition them. They will rule your petition as "inadmissible" but they will send you a letter informing you of this and they will also tell you that you have exhausted all domestic remedies within the UK Court system and that you can now make an appeal to the Court of Human Rights in Strasbourg. For details of how to apply to the Court of Human Rights please go to Human Rights/European Court of Human Rights. Back to the top 19. Human Rights/European Court of Human Rights The Human Rights Act 1998, came into force in full on 2nd October 2000. It incorporates into domestic law the European Convention on Human Rights (ECHR). To view the full 1998 Human Rights Act The most significant Articles from the Human Rights Act that may be breached by social services are- Article 2: Right to Life (1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law. (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary- (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Article 3: Inhuman treatment No one shall be subjected to torture or to inhuman or degrading treatment or punishment Article 8: Right to privacy (1) Everyone has the right for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The whole Human Rights Act concerns values of fairness and respect for human dignity. It makes it unlawful for any public authority to act in a way which is incompatible with a Convention right. "Public authority" is not defined but includes all obvious public authorities as well as private bodies when they exercise public functions. Social Services are included. The Act requires that, as far as possible, primary and secondary legislation is read and given effect in a way which is compatible with Convention rights. It also makes it unlawful for public authorities to act in a way which is incompatible with Convention rights unless they are acting under legislation which made it impossible to act differently. Public authorities therefore should always consider carefully the implications for Convention rights in all that they do, and ensure that they can justify any interference with Convention rights which their work gives rise to. In this respect social services tend to place much more emphasis on the 1989 Children’ Act, even though they seem to be regularly in breach of this without accountability. They also seem to be totally disregarding the Human Rights of the children and families they are involved with. So it is important that you know your Human Rights and know that you can take your case to the European Court in Strasbourg if you feel this has happened to you or your family, and UK courts are ignoring this breach. (see TAKING YOUR CASE OF THE EUROPEAN COURT OF HUMAN RIGHTS below) A person who claims that a public authority has acted or proposes to act in a way which is incompatible with the Convention may bring proceedings but only if he is or would be a victim of the unlawful act. To be a victim a person must be directly affected by the act in question. Relatives may bring proceedings on behalf of a victim if the victim is a child and lacks the capacity to bring them in their own name. Victims may also rely on Convention rights in proceedings brought against them. Claims may be made relying directly on the Act in which case they must normally be brought within a year of the act complained of. Where appropriate, Convention rights can also be pursued in other proceedings such as judicial review. In such cases the limitation periods will be subject to those normally applying in the particular kind of case. Where a public authority is bringing proceedings against a person, that person will be able to rely on any breach of Convention rights whenever the act in question took place if it is relevant to his or her defence. The UK courts also are under an obligation to interpret legislation in a manner compatible with the ECHR. Where they cannot do so, they may quash or dis-apply subordinate legislation and certain courts can make a declaration of incompatibility that the offending provisions of an Act of Parliament are incompatible with Convention rights. Remedies that may be awarded depend on the nature of the proceedings and the powers of the Court. Damages may be awarded if the Court has power to do so but the level awarded has to take account of the principles applied by the European Court of Human Rights when awarding damages. TAKING YOUR CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS Even though the HRA has now come into force in the UK it is still possible to make an application to the ECHR. There are three key requirements that you must meet: 1. You must be a victim of a violation of one or more of the articles of the Convention. Generally, this means you must be directly affected by a breach of the Convention. In some cases it will be enough to show you are likely to be affected by a breach or that you belong to a group of people, some of whom are likely to be affected. For example, gay men were permitted to challenge laws that criminalized gay sex even though it was unlikely that the individual applicants would ever be prosecuted because the laws were rarely enforced. 2. Before you make an application to the ECHR you must pursue any proceedings that you could take in the UK that are capable of providing you with an adequate remedy for the breach of your Convention rights. Now that the HRA is in force this will generally mean that you will have to take proceedings in the UK under the HRA. This may not be necessary, however, where it is clear that the best you could hope to achieve from taking proceedings under the HRA is a declaration of incompatibility. 3. You must make your application to the ECHR within six months of the conclusion of any court proceedings that you have taken in the UK that could have provided you with a remedy or, if there were no proceedings that it was reasonable to expect you to take, within six months of the alleged breach of your Convention right. When you make an application to the ECHR you will be asked to complete one of the ECHR’s application forms. However, it is not necessary to fill out one of these forms to meet the six month rule. All you need to do is to get a letter to the court within the six months setting out: 1. Your details (name, address and nationality). 2. The country against which you are making your application. 3. The facts that have given rise to your application. 4. The article or articles of the Convention that you say have been breached. You should send your letter to: The Registrar European Court of Human Rights Council of Europe 67075 Strasbourg-Cedex France Fax: 00 33 3 88 41 27 30 Tel: 00 33 3 88 41 20 18 When it has received your letter the ECHR will send you one of its application forms to complete. If there is not enough space on the form you can set out your case in a longer document which you attach to the form. It is important that you submit your completed application form within any deadline set by the ECHR or, if no deadline is set, within a few weeks of receiving it. If you do not submit the form speedily you run the risk that the ECHR will decide that you have not met the six month deadline. If you cannot meet any deadline that is set you should contact the ECHR and try to agree an extended deadline. Once the ECHR has acknowledged receipt of your application form it may be some time (months if not years) before you hear anything further. At this stage the ECHR may rule your application inadmissible. The ECHR will not give reasons and there is no right of appeal. If your application is ruled inadmissible you will not be able to proceed with it. If it is not ruled inadmissible at this stage, your application will be allocated to one of the ECHR’s four sections. A panel of seven judges from that section will deal with the case. This panel will always include the judge appointed by the United Kingdom. Very significant cases may be dealt with by the ECHR’s Grand Chamber. These cases are considered by a panel of seventeen judges. A case could be transferred to the Grand Chamber at any stage in the proceedings. Your application will also be communicated to the Government at this stage, that is, the Government will be informed that you have made an application and will be invited to respond. You will be given an opportunity to respond to the Government’s observations and there may be further exchanges of written representations. The ECHR will then decide whether your application is admissible. It can rule your application inadmissible if you have failed to meet one of the three requirements set out above or if the ECHR considers that it is ‘manifestly ill-founded’, in other words, that it is not arguable. If the ECHR finds your application inadmissible at this stage it will give reasons, but there is no right of appeal. If the ECHR finds your application admissible it will then go on to decide whether there has been a breach of the Convention. The ECHR usually refers to this as considering the merits of the application. At this point you have the right to put in a claim for compensation. The ECHR calls this ‘just satisfaction’. It should include a claim for legal expenses if you have incurred any. Your claim for just satisfaction should be sent to the ECHR within two months of the ECHR finding your application admissible. Both sides may make further representations before the ECHR decides on the merits of the application. When the ECHR has made its decision on the merits of your application, you will be notified of the date on which its judgment will be made public. The judgment will be published on the ECHR’s website on that day. If the ECHR finds that there has been a breach of your rights it may award you compensation although it does not always do so on the basis that its finding that there has been a breach of your rights is enough. Once a section of the ECHR has made a final decision on the merits of an application, either party, the Government or the Applicant, can ask to have the application referred to the Grand Chamber. This is the only form of appeal that the ECHR’s rules allow for. The Grand Chamber only rarely agrees to a referral. There is no appeal from a final decision made by the Grand Chamber. Hearings The ECHR deals with most cases without holding a hearing; it reaches its decisions on the basis of written representations made by the parties. When the ECHR does decide to hold a hearing this will usually take place before the ECHR has decided on the admissibility of the application, although it may also hold a hearing after an application has been found admissible if it has not already held one. Legal representation Although you can make an application to the ECHR yourself, it would be wise to get a lawyer experienced in ECHR proceedings to represent you. Most cases are ruled inadmissible at an early stage and are not communicated to the Government. Having a lawyer present your arguments for you may help you get over this hurdle. If the ECHR decides to hold a hearing after it has found your application admissible, the ECHR rules require you to be represented by a lawyer at that hearing unless the ECHR allows otherwise. Legal Aid The ECHR has a system of legal aid although the payments which a lawyer receives under the scheme are very low. You can apply for legal aid once your application has been communicated to the Government. It is particularly useful to have legal aid if the ECHR holds a hearing on your case, as legal aid will pay the cost of your and your lawyer’s trip to Strasbourg. Eligibility for legal aid will depend on the Legal Services Commission accepting that you would be eligible for legal aid in this country. If you are not eligible for legal aid, your lawyer may agree to represent you under a conditional fee agreement, that is, on the basis that they will only get paid if you win your case and get your legal costs paid by the Government. However, as very few applications to the ECHR are successful, your lawyer may be reluctant to take this risk. If you lose your case you will not be ordered to pay the Government’s legal costs. Taking a case to the European Court of Human Rights Source: Liberty Back to the top