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What is a care order?
A person with parental responsibility for a child can make decisions on their behalf and can e.g. manage their money; enrol them in a school; decide on their religious upbringing and consent to medical treatment. Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his/her property. Those rights can be shared by more than one person and each can make decisions.
When a child is born the Mother has Parental Responsibility (PR) and the Father if he is married to the Mother. The Father can acquire PR if he also registers the birth and appears on the birth certificate as the father; or he signs and registers a PR agreement with the Mother; or the courts make an order giving him PR.
Some other people can have PR- e.g. if a step parent acquires it through a legal route or by adoption.
If the court makes a Care order it means that the Local Authority (LA) share PR for that child, but a care order means that it has to consult with the other holders of PR about important decisions in a child’s life, but it can override them. So, if a LA with a care order says a child should live in foster care, even if the parent objects, the child will live in foster care. The care order allows the Local Authority to make the decision. Children can sometimes live at home under a care order if the Local Authority approves that as a placement for the child.
The care order also allows the LA to decide who the child sees and any conditions on this (contact), and schooling etc. If the parent objects to these decisions, they can ask the court to take a decision on this.
A care order lasts until a child’s 18th birthday when it automatically ends, or if the court earlier brings this to an end. It cannot be made on a child who has already reached their 17th birthday.
What is an interim care order?
An interim care order is a temporary version of a care order. It can be made for a specified time but is usually made for the length of the court proceedings unless earlier changed by the court.
It is a temporary right for the LA to make decisions until all of the evidence is available for the court to make final orders.
How long does a care case take?
On average these take about 6 months. All courts aim to finish a set of care proceedings in 26 weeks if possible although sometimes there are reasons this might take longer and this time can be extended by the court.
Who is involved in a care case?
The decisions will be made by a Judge or a set of Magistrates. Judges are lawyers before they are Judges. Magistrates are not legally trained but have a legal adviser with them to guide them on the law. The more complex case go to the Judges.
The Social workers make an application to the court when they are worried about a child/ren. The social workers will have a lawyer represent them in court.
Each parent with PR will be notified of the court case and entitled to attend. Each parent in a care case will also get automatic legal aid to pay for their lawyer to represent them. A Father without PR can apply to the court to be involved in the court case and will usually be joined into the case unless there are good reasons not to.
The court will appoint a Children’s Guardian to represent the children. They usually have a background in social work or similar areas but do not work for the LA. They are independent and experienced. Their role is to meet everyone involved in the case and make recommendations to the court about what decisions would be best for the child/children concerned. They will write one or two reports usually in the case, and set out what they recommend and why. The court pays a lot of attention to what the Guardian says because they have been appointed to help the court.
The Guardian will normally appoint a solicitor for the children involved. If the children are young, then the Guardian will tell the solicitor what to ask the court for. If the children/young people are older and have capacity to understand the proceedings themselves (judged by the solicitor normally), and if they disagree with what the Guardian says, they may wish to be separately represented without the Guardian. In that case the solicitor will do what the young person says in court.
What does a court have to decide before it can make a care order?
The court can only make a care order if it is satisfied of 2 stages:
- That the threshold criteria is met (see below)
- And that making a care order is in the best interests of the child
Threshold criteria
The court can only consider making a care order if the threshold criteria is met. That means that either the child concerned is suffering or likely to suffer significant harm because of the care they have or are likely to receive; OR the child concerned is beyond parental control.
The threshold criteria is judged when the case first starts or the child is first taken into protective care.
Therefore it is possible that when the case started the child was at risk, but by the end of the case say 6 months later, things had changed and the child was no longer at risk. But the threshold criteria is considered at the start of the case even if things change later.
Threshold criteria for an interim care order
To make an interim care order the court only has to be satisfied that there are reasonable grounds to believe that the threshold criteria are met (don’t forget, the court won’t have all the evidence in at the start of a case).
The welfare test
The court should only make an order if doing so is better for the child than making no order. The court should also make the least interventionist order necessary to protect the child/ren.
The court can only make a care order or interim care order if the threshold criteria (or interim threshold) are met AND it is in the best interests of the child to do so.
The court considers the welfare checklist in making this decision. This is a list of factors the court must apply and is set out in the law and considered in decided cases.
What are the stages of a care case?
If there is an application for an interim care order by the LA, the court will have a hearing to decide if one should be made. If everyone agrees (or doesn’t oppose) the court can make this in a short hearing. If it is opposed e.g. by a parent or the Guardian/children then the court will usually list a longer hearing to decide, after hearing evidence from everyone involved. Anyone who gives evidence is also “cross-examined” by the other lawyers, which means they are asked questions about what they have said and what the court has to decide.
The court will also have a Case management hearing (CMH). This can be with the interim care hearing or separately. The CMH lets the court give “directions” about who should get what evidence and when it should be available to the court. It is used to make sure that all the right information is gathered to help the court make a decision.
There can be more case management hearings if there is a reason to have more.
A few cases need a finding of fact hearing. Broadly this is if the decision of the court as to what did or didn’t happen is so crucial to the case that without the court deciding the allegations are proved the case may not meet threshold. If a fact finding is needed it will be listed as a separate hearing with evidence and the court then decides what it finds proved to have happened, and therefore the basis on which the case should proceed (if threshold is found).
The court will also have (as a minimum) an Issues Resolution Hearing (IRH) which can also be an Early final hearing (EFH) if all issues can be agreed or otherwise decided by the court at that hearing. The court will look at whether the case can be agreed and finished, and if not, then it will list a final hearing.
If matters cannot be resolved finally at the IRH then there will be a final hearing for however many days it takes to decide on the evidence and number of witnesses to be heard.
The Judge will then give their decision in a judgement.
Appeal?
The Judge’s decision can only be appealed on very rare and limited legal grounds. Unless the case fulfils one of these grounds the case is then finished.
If you have any queries or require advice on any care proceedings matter, contact our team today to discuss your needs.
