Nottingham City Safeguarding Children’s Board Procedures Manual
Nottingham City Safeguarding Children’s Board Procedures Manual Nottingham City Safeguarding Children’s Board Procedures Manual

1.4.4 Public Law Outline

SCOPE OF THIS CHAPTER

This chapter sets out the details of the Pilot Scheme of the revised Public Law Outline. The Pilot Scheme is being phased in between 1st July 2013 and 7th October 2013 and runs until 31st March 2014. The purpose of the Pilot Scheme is to assess the use of new practices and procedures to support the 26 week time limit for public law proceedings in the Children and Families Bill.

Note that new Rules and Practice Directions came into force on 31 January 2013 relating to expert evidence. They can be accessed at the Ministry of Justice website.

AMENDMENT

An "under review" marker was removed from this chapter in November 2016.


Contents

1. Public Law Outline
  1.1 Introduction
  1.2 Flexible Powers of the Court
  1.3 Pre-Proceedings
  1.4 Local Authority Documentation
  1.5 Case Management Hearing
  1.6 The Timetable for the Child and the Timetable for the Proceedings
  1.7 Extensions to the Timetable for the Proceedings
  1.8 Use of Experts
2. Case Management Checklist and Flowcharts
  2.1 Pre-Proceedings
  2.2 Stage 1 - Issue and Allocation
  2.3 Stage 2 - Case Management Hearing
  2.4 Stage 3 - Issues Resolution Hearing


1. Public Law Outline

1.1 Introduction

The Public Law Outline: Guide to Case Management in Public Law Proceedings came into force with effect from 6th April 2010. This followed on from previous statutory guidance for local authorities effective from 2008, which resulted from the Review of the Child Care Proceedings System in England and Wales.

A Pilot Scheme of a revised Public Law Outline is being phased in between 1st July 2013 and 7th October 2013, and will run until 31st March 2014.

The Public Law Outline sets out streamlined case management procedures for dealing with public law children's cases. The aim is to identify and focus on the key issues for the child, with the aim of making the best decisions for the child within the timetable set by the Court, and avoiding the need for unnecessary evidence or hearings.

As well as the Court-set timetable, the case management tools also involve the case management documentation to be filed by the local authority and other parties, (including case summaries and a schedule of proposed findings), advocates' discussions/meetings, a Case Management Hearing and an issues resolution hearing before the final hearing.

The aim is to complete cases within 26 weeks.

Sir James Munby, President of the Family Division, has set out his interpretation of the revised Public Law Outline in ‘The Process of Reform: the revised PLO and the Local Authority’.

1.2 Flexible Powers of the Court

Although the Public Law Outline sets out a prescribed set of stages, it also provides for flexibility at any stage of the proceedings. Steps, which the court will ordinarily take at the various stages of the proceedings, may be taken at another stage if the circumstances of the case so merit.

The flexible powers of the court include the ability for the court to cancel or repeat a particular hearing, to give directions without a hearing including setting a date for the Final Hearing, or to take oral evidence at the Case Management Hearing, Further Case Management Hearing or Issues Resolution Hearing.

1.3 Pre-Proceedings

Work done in the period pre-proceedings is vital for two reasons:

  • It may divert a case along a route which avoids the need for proceedings;
  • When that is not possible, and proceedings have to be commenced, the preparatory work will facilitate the smooth running of the case.

The sending to the parents of a timely ‘letter before proceedings’ triggers the availability of public funding for them.

There should be pre-proceedings work focusing on identifying and evaluating possible family carers.

Sir James Munby, President of the Family Division, set out in ‘The Process of Reform: the revised PLO and the Local Authority’, the expectations of the local authority.

He recommends that:

  • Local authority lawyers be involved, advising and assisting their social work clients, at an early stage;
  • A properly organised legal planning meeting is invaluable and can be the key to achieving timely outcomes to care proceedings;
  • The employment of a local authority case manager is vital. The post of case manager is a new post which was created for the purposes of the Tri-borough Care Proceedings Pilot. The case manager works directly with social workers and managers, with the intention of improving the quality of social work assessments and statements presented to court. The aim is that statements are purposeful, concise and clearly lay out the work that has been undertaken up to that point. The Case Manager works in a coaching role to help social workers produce high quality statements and to be explicit about the impact of delay on each individual child.

In some cases, the safety and welfare of the child may be jeopardised if the start of proceedings is delayed until all of the documents in the Pre-proceedings Checklist are available. The safety and welfare of the child should never be put in jeopardy because of lack of documentation, and immediate action such as an application for an Emergency Protection Order should be taken where necessary. Where any of documents are not available at the time of issue of the application, the court may make directions about when any missing documentation is to be filed. The expectation is that there must be a good reason why one or more of the documents are not available. Further directions relating to any missing documentation will also be made at the Case Management Hearing.

1.4 Local Authority Documentation

1.4.1 Documents to be Filed with the Court

The following documents must be attached to the application filed with the court on Day 1:

  • The social work Chronology;
  • The social work statement and genogram;
  • Any current Assessment relating to the child and/or the family and friends of the child to which the social work statement refers and on which the local authority relies;
  • The threshold statement;
  • The Care Plan;
  • The allocation proposal form.

1.4.2 Documents to be Served on the Other Parties (but not filed with the court)

On Day 2 the local authority must serve on the other parties (but must not file with the court unless expressly directed to do so) the ‘checklist documents’. These are:

  • Evidential and other documents which already exist on the local authority’s files (for example, previous court orders and judgments/reasons, any relevant assessments, including Section 7 or Section 37 reports, and single, joint or inter-agency reports, such as health, education, Home Office, UKBA and Immigration Tribunal documents). These documents are to be served with the application form;
  • A list of decision-making records (for example, records of key discussions with the family, key local authority minutes and records, pre-existing Care Plans and letters before proceedings). These documents are to be identified by list, not served, but must be disclosed on request by any party.

1.4.3 Principles

In the revised Public Law Outline, both the filing and service of documents is more focused, with a concentration on what is relevant, central and key, rather than what is peripheral or historical. Local authority materials are expected to be much shorter than previously, and they should be more focused on analysis than on history and narrative. Even if there has been local authority involvement with the family extending over many years, both the social work Chronology and the summary of the background circumstances as set out in the social work statement must be kept appropriately short, focusing on the key significant historical events and concerns and rigorously avoiding all unnecessary detail.

Documents must be recent - restricted to the most recent, limited to those from the last two years. Documents need not be served or listed if they are older than two years before issue of the proceedings, unless reliance is placed on them in the local authority’s evidence.

Documents must be focused and succinct:

  • The social work Chronology must contain a succinct summary of the significant dates and events in the child’s life, avoiding all unnecessary detail. Usually three or four pages at most will suffice;
  • The threshold statement is to be limited to no more than 2 pages;
  • The social work statement is to be limited to the following evidence:
    • Summary:
      • The order sought;
      • Succinct summary of reasons.
    • Family:
      • Family members and relationships especially the primary carers and significant adults / other children;
      • Genogram.
    • Threshold:
      • Precipitating events;
      • Background circumstances:
        • Summary of children’s services involvement. This must be cross-referenced to the Chronology and avoid unnecessary repetition of what is already set out in the Chronology. It need be no more than a page or two;
        • Previous court orders and emergency steps;
        • Previous assessments.
      • Summary of harm and / or likelihood of harm;
    • Parenting capacity:
      • Assessment of child’s needs;
      • Assessment of parental capacity to meet needs;
      • Analysis of why there is a gap between parental capacity and the child’s needs;
      • Assessment of other significant adults who may be carers.
    • Child impact:
      • Wishes and feelings of the child(ren);
      • Timetable for the child;
      • Delay and timetable for the proceedings.
    • Early permanence and contact:
      • Parallel planning;
      • Placement options;
      • Contact framework.
    • Case management:
      • Evidence and assessments necessary and outstanding;
      • Case management proposals.

The local authority materials must be succinct, analytical and evidence-based. Assessment and analysis are crucial. They need to distinguish clearly between what is fact and what is professional evaluation, assessment, analysis and opinion, and between the general background and the specific matters relied on to establish ‘threshold’.

1.4.4 Threshold Statement

Careful thought needs to be given to the evidence required to establish ‘threshold’. Voluminous statements will usually not be required. It is not necessary for the court to find a mass of specific facts in order to arrive at a proper threshold finding. The threshold statement can usually be little more than a page, if that.

For example, in a typical case of chronic neglect:

  • The central core of the statement of threshold need be no more detailed than:

    “The parents have neglected the children. They have:
    • Not fed them properly;
    • Dressed them in torn and dirty clothes;
    • Not supervised them properly;
    • Not got them to school or to the doctor or hospital when needed;
    • Not played with them or talked to them enough;
    • Not listened to the advice of social workers, health visitors and others about how to make things better: and now will not let the social worker visit the children the home (the evidence to support the case being identified by reference to the relevant page numbers in the ‘bundle’ of documents supplied to the court and all parties for use at hearings)”;
    • No more than four or five pages (if that) from each of the school teacher, the health visitor and the family’s GP will generally suffice to establish much of the factual basis for the local authority’s case, supported by similarly succinct and focused statements from the social workers who can speak of their own personal knowledge of conditions in the home and the attitude of the parents.

1.5 Case Management Hearing

A greater emphasis is placed on the first hearing, which is renamed Case Management Hearing (‘CMH’) (previously Case Management Conference). It is vital that the first Case Management Hearing is effective in order to meet the 26-week deadline.

The first Case Management Hearing should take place on Day 12.

It is expected that full case management will take place at the Case Management Hearing. The parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 - Case Management Hearing. A Further Case Management Hearing (‘FCMH’) should only be directed where necessary and must not be regarded as a routine step in proceedings.

1.6 The Timetable for the Child and the Timetable for Proceedings

1.6.1 The Timetable for the Child

The Timetable for the Child is the timetable set by the court which takes into account dates which are important to the child’s welfare and development.

The Timetable for the Proceedings is set having particular regard to the Timetable for the Child, and the Timetable for the Child needs to be reviewed regularly. Where adjustments are made to the Timetable for the Child, the Timetable for the Proceedings will have to be reviewed consistently with the aim of resolving the proceedings within 26 weeks.

Examples of the dates the court will take into account when setting the Timetable for the Child are the dates of:

  • Any Looked After Review;
  • Any significant educational steps, including the child taking up a place at a new school and, where applicable, any review of an Education, Health and Care Plan;
  • Any health care steps, including assessment by a paediatrician or other specialist;
  • Any review of local authority plans for the child, including any plans for permanence through adoption, Special Guardianship or placement with parents or relatives;
  • Any change or proposed change of the child’s placement; or
  • Any significant change in the child’s social or family circumstances.

Information about these significant steps in the child’s life must be provided in the Application Form and the social work statement, and this information must be updated regularly, taking into account information received from others involved in the child’s life such as the parties, members of the child’s family, the person who is caring for the child, the children’s guardian and the child’s key social worker.

Where more than one child is the subject of the proceedings, the court should consider and will set a Timetable for the Child for each child. The children may not all have the same timetable, and the court will consider the appropriate progress of the proceedings in relation to each child.

 Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should where practicable take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the Timetable for the Child. The aim of resolving the proceedings within 26 weeks applies unless a longer timetable has been set by the court in order to resolve the proceedings justly. In these proceedings, early disclosure and listing of hearings is necessary.

1.6.2 The Timetable for the Proceedings

The court will draw up a Timetable for the Proceedings with a view to disposing of the application:

  • Without delay; and
  • In any event, with the aim of doing so within 26 weeks beginning with the day on which the application was issued.

The court will have regard to:

  • The impact which the timetable or any revised timetable would have on the welfare of the child; and
  • The impact which the timetable or any revised timetable would have on the duration and conduct of the proceedings.

The court will use the Timetable for the Child to assess the impact on the welfare of the child, and to draw up and revise the Timetable for the Proceedings.

1.7 Extensions to the Timetable for Proceedings

Having regard to the circumstances of the case, the court may consider that it is necessary to extend the time by which the proceedings are intended to be resolved beyond 26 weeks. This may be on application or the court’s own initiative. Extensions are not to be granted routinely and require specific justification.

The reason(s) for extending a case should be recorded in writing in the Case Management Order and orally stated in court, so that all parties are aware of the reasons for delay in the case.

An initial extension may be granted for up to eight weeks (or less if directed), meaning that the maximum time limit for proceedings will be 34 weeks. A further extension of up to eight weeks may be agreed by the court. There is no limit on the number of extensions that may be granted. If a further extension is granted, the Case Management Order should:

  • State the reason(s) why it is necessary to have a further extension;
  • Fix the date of the next effective hearing; and
  • Indicate whether it is appropriate for the next application for an extension of the timetable to be considered on paper. Extensions should generally be considered at a hearing - this can be by telephone or by any other method of direct oral communication.

1.8 Use of Experts

Under the Experts Practice Directions, if the question of whether an expert should be instructed is raised, the court should first consider if this work can be completed by a social worker or Children's Guardian. Sir James Munby, President of the Family Division in ‘The Process of Reform: the revised PLO and the Local Authority’, cautions against the ‘unnecessary use of and reliance upon other experts’.

Note that new Rules and Practice Directions came into force on 31 January 2013 relating to expert evidence. They can be accessed at the Ministry of Justice website.

The changes include:

  • A change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’. This new test also applies to permission to instruct an expert and for a child to be examined or assessed for the purpose of the provision of expert evidence;
  • The inclusion of specific factors to which the court is to have particular regard in reaching a decision whether to give permission relating to expert evidence, including the impact on the timetable and conduct of the proceeding and the cost;
  • An application for permission to instruct an expert should state the questions which the expert is required to answer and the court will give directions approving the questions that are to be put to the expert.


2. Case Management Checklist and Flowcharts

2.1 Pre-Proceedings

PRE-PROCEEDINGS
PRE-PROCEEDINGS CHECKLIST

Annex Documents are the documents specified in the Annex to the Application Form which are to be attached to that form and filed with the court:

  • Social Work Chronology;
  • Social Work Statement and genogram;
  • The current assessments relating to the child and/or the family and friends of the child to which the Social Work Statement refers and on which the LA relies;
  • Threshold Statement;
  • Care Plan;
  • Allocation Proposal Form;
  • Index of Checklist Documents.

Checklist documents (already existing on the LA’s files) are:

(a) Evidential documents including:

  • Previous court orders and judgments/reasons;
  • Any assessment materials relevant to the key issues including Section 7 and 37 reports;
  • Single, joint or inter-agency materials (e.g., health & education/Home Office and Immigration Tribunal documents).

(b) Decision-making records including:

  • Records of key discussions with the family;
  • Key LA minutes and records for the child;
  • Pre-existing care plans (e.g., child in need plan, looked after child plan and child protection plan);
  • Letters Before Proceedings.

Only Checklist documents in (a) are to be served with the application form.

Checklist Documents in (b) are to be disclosed on request by any party.

Checklist documents are not to be:

  • Filed with the court unless the court directs otherwise; and
  • Older than 2 years before the date of issue of the proceedings unless reliance is placed on the same in the LA’s evidence

2.2 Stage 1 - Issue and Allocation

STAGE 1 ISSUE AND ALLOCATION
DAY 1 AND DAY 2

On Day 1 (Day of issue):

  • The LA files the Application Form and Annex Documents and sends copies to Cafcass/CAFCASS CYMRU;
  • The LA notifies the court of the need for a contested ICO hearing where this is known or expected;
  • Court officer issues application.

Within a day of issue (Day 2):

  • Court considers allocation, and if appropriate, transfers proceedings in accordance with the President’s Guidance on Allocation and Gatekeeping;
  • LA serves the Application Form, Annex Documents and evidential Checklist Documents on the parties together with the notice of date and time of CMH;
  • Court gives standard directions on Issue and Allocation including:
    • Checking compliance with Pre-Proceedings Checklist including service of any missing Annex Documents;
    • Appointing Children’s Guardian (to be allocated by Cafcass/CAFCASS CYMRU);
    • Appointing solicitor for the child only if necessary;
    • Appointing (if the person to be appointed consents) a litigation friend for any protected party or any non subject child who is a party, including the OS where appropriate;
    • Filing and service of a LA Case Summary;
    • Filing and service of a Case Analysis by the Children’s Guardian;
    • Making arrangements for a contested ICO hearing (if necessary);
    • Filing and Serving the Parents’ Response;
    • Sending a request for disclosure to, e.g., the police;
    • Filing and serving an application for permission relating to experts under Part 25 on a date prior to the advocates meeting for the CMH;
    • Directing the solicitor for the child to arrange an advocates’ meeting 2 days before the CMH;
    • Listing the CMH;
  • Court officer sends copy Notice of Hearing of the CMH by email to Cafcass/CAFCASS CYMRU.

2.3 Stage 2 - Case Management Hearing

STAGE 2 - CASE MANAGEMENT HEARING
ADVOCATES’ MEETING
(including any litigants in person (FPR12.21E(5))
CASE MANAGEMENT HEARING
No later than 2 clear days before CMH (or FCMH if it is necessary).

CMH: by Day 12

A FCMH is to be held only if necessary, it is to be listed as soon as possible and in any event no later than day 20 (week 4).

  • Consider information on the Application Form and Annex documents, the LA Case Summary, and the Case Analysis;
  • Identify the parties’ positions to be recited in the draft Case Management Order;
  • If necessary, identify proposed experts and draft questions in accordance with Part 25 and the Experts Practice Directions;
  • Identify any disclosure that in the advocates’ views is necessary;
  • Immediately notify the court of the need for a contested ICO hearing;
  • LA advocate to file a draft Case Management Order in prescribed form with court by 11a.m. on the working day before the CMH and/or FCMH.

Court gives detailed case management directions, including:

  • Confirming allocation and/or considering transfer;
  • Drawing up the timetable for the child and the timetable for the proceedings and considering if an extension is necessary;
  • Identifying additional parties and representation (including confirming that Cafcass/CAFCASS CYMRU have allocated a Children’s Guardian);
  • Identifying the key issues;
  • Identifying the evidence necessary to enable the court to resolve the key issues;
  • Deciding whether there is a real issue about threshold to be resolved;
  • Determining any application made under Part 25 and otherwise ensuring compliance with Part 25 where it is necessary for expert(s) to be instructed;
  • Identifying any necessary 3rd party disclosure and if appropriate giving directions;
  • Giving directions for any concurrent or proposed placement order proceedings;
  • Ensuring compliance with the court’s directions;
  • If a FCMH is necessary, directing an advocates’ meeting and Case Analysis if required;
  • Directing filing of any threshold agreement, final evidence and Care Plan and responses to those documents for the IRH;
  • Directing a Case Analysis for the IRH;
  • Directing an advocates’ meeting for the IRH;
  • Listing (any FCMH) IRH, Final Hearing (including early Final Hearing);
  • Giving directions for special measures and/or interpreters;
  • Issuing the Case Management Order.

2.4 Stage 3 - Issues Resolution Hearing

STAGE 3 - ISSUES RESOLUTION HEARING
ADVOCATES’ MEETING
(including any litigants in person (FPR12.21E(5))
ISSUES RESOLUTION HEARING (IRH)
No later than 7 days before the IRH. As directed by the court, in accordance with the timetable for the proceedings.
  • Review evidence and the positions of the parties;
  • Identify the advocates’ views of:
    • The remaining key issues and how the issues may be resolved or narrowed at the IRH including by the making of final orders;
    • The further evidence which is required to be heard to enable the key issues to be resolved or narrowed at the IRH;
    • The evidence that is relevant and the witnesses that are required at the final hearing;
    • The need for a contested hearing and/or time for oral evidence to be given at the IRH;
  • LA advocate to:
  • Notify the court immediately of the outcome of the discussion at the meeting;
  • File a draft Case Management Order with the court by 11a.m. on the working day before the IRH.
  • Court identifies the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
  • Court considers whether the IRH can be used as a final hearing;
  • Court resolves or narrows the issues by hearing evidence;
  • Court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing;
  • Court gives final case management directions including:
    • Any extension of the timetable for the proceedings which is necessary;
    • Filing of the threshold agreement or a statement of facts/issues remaining to be determined;
    • Filing of:
    • Final evidence & Care Plan;
    • Case Analysis for Final Hearing (if required);
    • Witness templates;
    • Skeleton arguments;
    • Judicial reading list/reading time, including time estimate and an estimate for judgment writing time;
    • Ensuring Compliance with PD27A (the Bundles Practice Direction);
    • Listing the Final Hearing;
  • Court issues Case Management Order.

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