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3.2 Court Proceedings

RELEVANT GUIDANCE

Children and Young Persons Act 2001

Isle of Man Guidance Part A: Court Orders and Related Matters

RELATED CHAPTER

Public Law Outline Procedure


Contents

  1. General Legal Advice
  2. Legal Action
  3. Information Social Workers Share with the Departmental Advocate
  4. Correspondence Received Directly from the Court and/or Solicitors from Private Practice (Without having gone via Legal Services)
  5. Private Law Proceedings
  6. Legal Planning Meetings
  7. Pre-Proceedings Actions - Departmental Workers
  8. Pre-Proceedings Actions - Legal Services Tasks
  9. Applications to Court
  10. Statements, Care Plans and Reports
  11. Attending Court
  12. While Proceedings are Underway
  13. Witnesses
  14. Legal Planning Checklist


1. General Legal Advice

1.1 The purpose of contacting Legal Services is for advice and information on relevant legislation and case law, and the options available to departmental in the given situation.
1.2

It is not the responsibility of legal staff to make decisions about what the social worker should do - social workers should seek guidance from their senior managers on management issues relating to:

  • Risk assessment and analysis;
  • Day to day case conduct;
  • Practical decisions relating to social work with the family, e.g. contact arrangements;
  • Management decisions;
  • Care planning decisions.
1.3 When decisions have been made concerning the above, social workers are required to notify the Departmental Advocate with conduct of the case, if there are court proceedings, so that the Advocate can notify the parties to the proceedings and the Court, if necessary.


2. Legal Action

2.1 The role of the Departmental Advocate is to give advice about what options may be most appropriate and whether the grounds are met for any legal action but the final decision as to what action should be taken rests with the Designated Manager. The only circumstances in which Departmental Advocates will not follow departmental instructions are if they are illegal, as Advocates are under an overriding duty to the Court.


3. Information Social Workers Share with the Departmental Advocate

3.1 Generally anything that is shared with the Departmental Advocate (in writing and in discussions) in a professional capacity concerning legal issues will be kept confidential from the Children’s Guardian and other parties to proceedings, unless the Advocate has a duty to disclose or there are concerns about child protection or practice issues. The Advocate is an Officer of the Court and is under a duty to be open and honest concerning its dealings with the Court, and at the same time they are also employees of the Isle of Man Government.
3.2 It is important that social workers keep recordings of legal advice separate from the information filed in respect of the child.


4. Correspondence Received Directly from the Court and/or Solicitors from Private Practice (Without having gone via Legal Services)

4.1 If social workers receive something from the Court or a firm of Solicitors directly they must ensure they check that Legal Services have also received a copy. If not, a copy should be faxed to Legal Services to ensure that any necessary legal advice is received before a response is made.
4.2 The allocated worker must also provide any instructions on the issue that the Order/letter is asking about so the Advocate may respond.


5. Private Law Proceedings

5.1 Private law proceedings are generally court proceedings where the application is being made by a member of the public (i.e. parents, extended family members or friends of the family).
5.2 The request from Court will usually include a specific date by which the report is meant to be filed - this means that the report should be with Legal Services at least three working days prior to that date. If departmental staff know they will struggle to meet that deadline they should inform the Advocate who has sent them the court order as soon as possible, though they should also be aware that an extension of time is at the discretion of the Court and may not be agreed.


6. Legal Planning Meetings

6.1

A Legal Planning Meeting may be triggered by a number of circumstances:

6.2

Legal Planning Meetings take place to discuss a number of different issues:

  • Whether a child or children are suffering or are likely to suffer Significant Harm;
  • What legal options are available to the Department;
  • What other work needs to be undertaken, or information provided, in order to facilitate those legal options or make them unnecessary;
  • Issues of concern for the Department to inform any eventual letter to parents notifying them of Children and Families’ intention to take care proceedings;
  • What approvals are needed in terms of initiating Care Proceedings, children coming into care, specialist assessments.
6.3 A Legal Planning Meeting will usually consist of the allocated worker, their manager, and an Advocate from the Legal Services.
6.4 Written minutes of the Legal Planning Meeting are prepared by the Advocate and will be available to the allocated worker within 7 days of the meeting. These minutes will detail what action needs to be taken, by whom and by what date. If necessary a review legal planning meeting can be arranged to check on the progress of these actions and discuss the situation further. A copy of the minutes will be sent to the relevant Manager for their information by the Advocate.
6.5 The Legal Planning Meeting minutes will include a recommendation of whether proceedings should be initiated, however it is the decision of the Children and Families whether to act on that recommendation at that point in time, or at any time in the future.
6.6 Following the legal planning meeting a named Advocate will be allocated to the case.


7. Pre-Proceedings Actions - Departmental Workers

7.1

After the first Legal Planning Meeting (LPM) the allocated worker will be undertaking a number of tasks as outlined in the minutes of the LPM. These could include for example the following:

Undertaking a NARRATES or specific parenting assessment (this will form a substantial part of the Department's evidence at the first hearing should an application to Court be made).

Undertaking viability assessments of friends and family members.

Keeping the allocated Advocate updated as to the progress of assessments and other involvement with the family.


8. Pre-Proceedings Actions - Legal Services Tasks

8.1

The allocated Advocate will undertake the following tasks:

  • Identify relevant documentation from previous proceedings, including any associated families;
  • Liaise with the Children and Families in relation to the list of issues raised;
  • Draft Schedule of Proposed Findings.


9. Applications to Court

9.1 Court applications for proceedings on behalf of the Isle of Man Children and Families are drafted by Legal Services staff, in consultation with the allocated worker and/or their manager. However, it is the responsibility of Children and Families to ensure that sufficient information is available to allow that application form to be completed accurately and fully.
9.2 It is also the responsibility of the allocated worker to ensure that they have managerial approval of any steps they intend to instruct Legal Services to take on behalf of Children and Families.
9.3 Gaining managerial agreement to cover costs such as residential or other specialist assessments within the Care Proceedings is also the responsibility of the allocated worker and/or their line manager. This should be done before any application is made that advises the court that the Department intends to fund those assessments, whether partly or fully.
9.4 The Advocate will need to file a number of documents in Court and the Social Worker will need to ensure the Advocate is provided with copies of relevant documents from the child's file as follows:
9.5

Documents to be disclosed from departmental files:

  • Previous Court Orders and Judgement/Reasons;
  • NARRATES and any parenting assessments;
  • Other relevant reports;
  • A Genogram;
  • Other relevant records (e.g. minutes of meetings, records of key discussions with parents/family);
  • Pre-existing care plans (e.g. Child with Complex Needs Plan, CLA Plan and Child Protection Risk Action Plan);
  • Social work chronology;
  • Letters before proceedings.
9.6 Documents prepared for proceedings: see Public Law Outline Procedure.


10. Statements, Care Plans and Reports

10.1 The responsibility for the completion of statements, care plans and other such documents to be submitted to the Court rests with the allocated worker and their line manager. These documents must be checked by the manager prior to being passed to Legal Services to ensure that the risk analysis and recommendations are in keeping with the case and procedures.
10.2 The role of the Advocate in relation to these documents is to advise on any issues that might arise as a result of their content.
10.3 Other than for the initiation of Care Proceedings, the Court will request written information within a particular timescale. It is important that the allocated worker plays an active role in stating when it is realistic for them to provide that information, given their other work commitments. It is also the responsibility of the allocated worker to inform the Advocate of any issues that arise in relation to the fulfilment of those requests as soon as possible.
10.4 The Advocate may ask the Court to reconsider its timetable for the receipt of that information but that is no guarantee that further time will be given - the allocated worker may, as a result of any problems in completing the work within the time given, be required to attend Court and explain why there is a delay. If such a request is made by the Court, the worker in question must attend.


11. Attending Court

11.1

Care Proceedings:

  • The allocated worker is expected to attend all Court hearings in relation to any proceedings undertaken by the Children and Families, unless advised that their attendance is not required. The social worker should discuss with the Advocate involved what time they should be at Court for any particular hearing, as well as confirming which Court they should attend;
  • The primary responsibility for supporting allocated workers in relation to Care Proceedings lies with their line managers. Issues around what support a worker may need in relation to any particular hearing should be discussed in the first instance with them;
  • In the event that decisions need to be made whilst at Court, the allocated worker should be clear about who to contact and how to get hold of them if the manager is not attending Court with them. If, for example, the line manager is on leave, the allocated worker should be able to identify who is covering in their absence.
11.2

Private law applications:

  • Because the Department is not involved in these proceedings, other than in terms of providing a report, an Advocate will not usually attend;
  • The worker providing a report to the Court should only attend if they have received a Court Order specifying that they need to be at Court for the hearing. Allocated workers should discuss what support they need with their manager.


12. While Proceedings are Underway

12.1

Both the Advocate with conduct of the case and the allocated worker and their line manager must keep in regular contact, particularly in respect of any of the following issues:

  • Difficulties with contact, either in terms of the behaviour of parents or children or issues in relation to ensuring that contact takes place as outlined in the CLA Plan;
  • Difficulties in respect to the foster placement of a child in proceedings;
  • Planned or unplanned moves from one foster placement to another, including respite arrangements;
  • Any problems arising in relation to the health of the child, including respite arrangements;
  • Any problems arising in relation to the health of the child, including planned or emergency medical treatment;
  • Issues in relation to the education of a child in proceedings, particularly in relation to exclusion or planned/unplanned changes of nursery or school;
  • Significant issues in respect of the working relationship between the allocated worker and the parents or extended family;
  • Any changes of the Care Plan;
  • Alterations of Court hearing dates;
  • Information received from other parties;
  • Issues and outcomes relating to assessments.
12.2 The allocated worker is expected to keep the Children’s Guardian apprised of any issues in relation to the above, or anything else that is significant. The allocated worker and the Advocate should be clear about who will pass on information about the above issues to parents and individuals with Parental Responsibility (usually the role of the allocated worker) and the legal representatives of other parties in the proceedings (usually the role of the Advocate).


13. Witnesses

13.1 It is the role of the Advocate to ensure that witness statements are obtained from any individual who may have knowledge of the situation that can help the Court to make its decision; regardless of their role and relationship to the child in proceedings. The responsibility of the allocated worker is to identify professionals and other individuals who may have such information and to give whatever contact details they can.


14. Legal Planning Checklist

Identity

  • Have all significant persons involved in the children's care been identified?
  • Have fathers with Parental Responsibility and other significant adults in the family been informed of the proceedings?
  • Has a copy of the birth certificate been obtained? Is this needed as soon as possible?
  • Has a genogram been prepared? Do we have details of extended family?

Updating Significant Events

  • Is any information held by other agencies/departments?
  • What steps have been taken to obtain the information?
  • Is the information available in sufficient detail?
  • Are there any further steps necessary to obtain information?
  • Are files held on relevant adults, e.g. grandparents?
  • Have we inspected those files and extracted significant information?

The Threshold Criteria (for Care Proceedings brought by the Department under section 31 of the Children and Young Persons Act 2001).

  • What is the harm that the child is suffering or is likely to suffer, define it, i.e. Neglect, Sexual Abuse, Physical Abuse or Emotional Abuse?
  • Is the harm the result of deficits in the parental care?
  • What evidence and research is relied on to support the assertion that the child is suffering harm?

Assessment of Risk and Need

  • What is the likely outcome for the child in terms of harm issues if there is no intervention?
  • Have Protective Factors and non-Protective Factors been identified?
  • What are the long-term consequences for the child if the harm continues, with likely outcomes?
  • Is the child securely or insecurely attached to carers?
  • What is the balance of breaking attachments against the ongoing risk of harm?
  • Can any disruption in attachment be mitigated?

Options other than the Court Process

  • Agreed family placement;
  • Other resources/services.

Further Evidence and Assessment

  • Is further evidence required to clarify threshold issues?
  • Is further assessment required to clarify harm issues?
  • What needs to change in respect of deficits in parenting specific issues?
  • What is the prognosis for change given past history?
  • Have parents/carers been advised that particular behaviour needs to change and of the consequences for the child and its future care?
  • What specific assessment can be put in place to measure ability change?

Interim Care Planning and Options for Permanence

  • Have specific tasks been allocated and is everyone clear re the timetable? e.g. referral to Adoption or Fostering Panel.

Expert Evidence

  • Is the expert required? What are the issues to which it is proposed expert evidence or further assessment should be directed?
  • What questions are to be put to the expert?
  • What is the relevance of expert evidence to the issues in the proceedings?
  • Why can't the expert evidence proposed be given by the social worker or Children’s Guardian in accordance with their different statutory duties?
  • Who will carry out the assessment?
  • Who will instruct and what is the timetable and likely cost?
  • Is more than one expert required?

End