Good Practice in Child Care Cases

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• Publisher: Law Society
• Year: 2015
• eBook ISBN:
  9781784460211
• Print ISBN:
  9781784460204

PART 1

General principles

1.1CHILD FOCUS

1.1.1Section 1(1) of the Children Act (CA) 1989 states

When a court determines any question with respect to –

(a)the upbringing of a child; or

(b)the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

1.1.2A focus on the child is essential to good practice and solicitors should ensure that the principle that a child’s interests are paramount is reflected in the conduct of the case itself.

1.1.3All solicitors, whether acting for local authorities, parents and other adult parties, or the child or children’s guardian (giving instructions on the child’s behalf), have a duty to act on the instructions of their particular client.

1.1.4Each client may have a different view as to what is in the child’s interests. However, all solicitors can, and should, adopt a child-focused approach by ensuring that the presentation of their client’s case takes into account the needs of the child throughout and make best efforts to ensure that clients understand that the court’s paramount concern is the child’s welfare.

1.2THE ‘NON-ADVERSARIAL’ APPROACH

1.2.1Case law and guidance state that public law CA 1989 proceedings should be treated as ‘non-adversarial’. However care proceedings, by their nature, are adversarial, since the evidence to satisfy the threshold criteria must be thoroughly tested and issues which relate to disposal are often not agreed, especially when adoption is part of the care plan.

1.2.2In practice, ‘non-adversarial’ means that solicitors should not behave in an unduly antagonistic, aggressive, or confrontational manner. Child care cases should be approached with a spirit of professional co-operation with due respect to all parties, particularly if any party is unrepresented. See also:

• Resolution’s Guide to Good Practice for Family Lawyers on Working With Litigants in Person (2014), available to download from: www.resolution.org.uk.
• The judiciary’s A Handbook for Litigants in Person (22 October 2013), available to download from: www.judiciary.gov.uk.
• The Bar Council’s Representing Yourself in Court (2014), available to download from: www.barcouncil.org.uk.
• Joint guidelines on dealing with litigants in person (LiPs) published by The Law Society, the Bar Council and CILEx, available to download from: www.cilex.org.uk/membership/lip_guidelines.aspx.

1.2.3Solicitors must therefore:

(a)Avoid adopting an antagonistic or confrontational attitude in their approach to the case or advocacy that may cause unnecessary acrimony, delay or cost. Solicitors should remember that if one party behaves in such a manner, the other parties may feel forced to respond in kind. All solicitors should resist such an approach, however ‘productive’ this may appear to be in the short term.

(b)Ensure that all parties and their legal representatives are treated with respect and that all matters are dealt with in as courteous and cordial a manner as possible while still putting a client’s case robustly and challenging the evidence, if necessary (see 1.3).

1.2.4It is worth noting that the court is developing a more ‘inquisitorial’ approach as a result of having to deal with increasing numbers of LiPs – even in public law cases where family members may be parties but legal aid is not available.

1.2.5Proactive case management is very much connected to the issue of delay. All solicitors, whoever they are representing, should be committed to avoiding delay in the proceedings, both because statute and case law repeatedly emphasise that delay is contrary to the interests of the child and because of the change in procedure which stipulates that care proceedings should conclude within 26 weeks from the date of issue unless the case is exceptional. Please see 1.5 below.

1.2.6Solicitors have a duty to promote these principles in the interests of children and should bear in mind the following:

(a)A child’s development and stability require prompt and effective decision-making within the child’s timescales and using evidence relevant to each child’s needs.

(b)Children and their families are not usually involved in proceedings by choice.

(c)The effect of proceedings on the child and members of the family can be profound and may impact upon the family members and family dynamics for the long term, particularly if the proceedings are acrimonious or badly managed.

1.2.7The actions of solicitors can in themselves, therefore, undermine the effectiveness of measures which are ordered by the court, especially if a child is placed within the family network and it is envisaged that a child will have contact with his or her parent.

1.2.8Solicitors should encourage their clients to work in partnership with local authority professionals, especially in an effort to create a cordial working relationship after the care proceedings conclude in the event that a care order is made and a child resides with foster carers or extended family members for the long term.

1.3TESTING THE EVIDENCE

1.3.1Solicitors must ensure that they rigorously test all the evidence and advise their clients to concede issues and/or contest the case as appropriate, in relation to the threshold criteria and all other evidence. Full consideration should always be given to the need to test witness evidence by cross-examination in a thorough but professional and courteous manner.

1.3.2Clients should be advised that their evidence is dealt with by the court in accordance with prescribed rules and the court has the final decision on which, if any, experts should attend at court to present oral evidence. Likewise, a court will also determine if it is necessary for a separate fact-finding hearing to be held during the course of any Children Act proceeding.

1.4PROFESSIONAL APPROACH

1.4.1Solicitors must take care not to become so involved that their personal emotions or own emotional response to the child or any issue which arises in the case adversely affects their judgement. Retaining a professional and objective relationship with the client is crucial. Clients have the right to put their case, subject to the prescribed rules and procedure, and solicitors must be careful not to substitute their own judgement on what is in the child’s best welfare interests for that of their client. In acting professionally solicitors should:

(a)Listen to clients and take instructions throughout.

(b)Explain and guide clients about the court process and how the court is likely to manage the case to its conclusion.

(c)Advise clients carefully on the available options and likely outcomes on the basis of the evidence. Solicitors should ensure that they objectively evaluate the evidence, particularly at the early stages so as, for example, to avoid unsuccessful applications for interim orders which serve only to cause unnecessary conflict and costs. As new evidence is presented, solicitors must revise and update their advice to clients.

(d)Properly exercise professional judgement in advising clients when there are reasonable grounds to contest an issue and when it is appropriate to compromise,...

Table of contents

• Cover
• Half Title
• Related titles from Law Society Publishing
• Title
• Copyright
• Contents
• Foreword to the third edition by the Right Honourable Sir James Munby
• Preface and acknowledgements
• Table of cases
• Table of statutes
• Table of statutory instruments
• Abbreviations
• 1 General principles
• 2 Common issues
• 3 Local authority solicitors
• 4 Solicitors instructed by children or children’s guardians
• 5 Solicitors instructed by parents and other adult parties
• 6 Other important aspects of public law Children Act cases
• 7 Legal aid and costs information
• Appendices
• Index