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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),
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
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)
Parental Responsibility means all the rights, duties and
responsibilities which by law a parent has in relation to a
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
6.The Care Plan
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?
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
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
3. In the section "Area of Law" press the arrow pointed down and select
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.
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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
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.
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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
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.
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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
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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
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.
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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:
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
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
-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
-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
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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:-
Advice and Advocacy Service for Children
20 City Road,
Tel: 020 7833 5792, fax: 020 7713 1950,
Gillick Competent - The law was set out in the case of (Gillick v West
Norfolk and Wisbech AHA  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.
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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.
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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
• 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.
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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
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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.
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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
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.
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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
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”.
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14. What orders can the court make?
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.
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
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.
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:
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 )
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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
-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
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
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
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
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
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
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).
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.
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.
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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
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
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
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
Research says the following:- (and can be used as arguments in
-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.
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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
(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
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
East region and Hertfordshire advocacy service:
Regional Manager - David Clarke
42A Church Street
Hatfield AL9 5AW
T: 01707 270169
F: 01707 276097
1st Floor, Venture House, Venture Court
Boleness Rd, Wisbech Cambs PE13 2XQ
T/F: 01945 584748
Regional Manager - Alice Frank
Suite G15, Redlands, 3-5 Tapton House Road
Sheffield S10 5BY
T: 0114 267 9389
F: 0114 267 1735
Swindon Children's Rights Service
Room 2, Oaktree School Annexe
Priory Road, Park South
Swindon SN3 2HA
T: 01793 487 490
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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
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
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
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.
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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
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
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
(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
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
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
You should send your letter to:
European Court of Human Rights
Council of Europe
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
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
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
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.
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
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
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
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:
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