The Children Act 1989

Transcription

1 The Children Act 1989 The Children Act 1989 supplemental guidance: Volume 1 Court Orders For social work practitioners, directors of social services, heads of children s services and local authorities April 2014

2 Audience Directors of Social Services, Heads of Children s Services, Social Workers, their Managers and Legal Teams, Local Safeguarding Children s Boards, Local Health Boards, NHS Trusts, Children and Young Peoples Partnerships, Police, Youth Offending Teams and CAFCASS Cymru Overview This supplemental guidance is issued under section 7 of the Local Authority Social Services Act 1970 and section 60 of the Government of Wales Act Local Authorities are therefore required to have regard to and act in accordance with this guidance. This is supplemental guidance which outlines the key changes to The Children Act 1989: Guidance and Regulations Volume One Court Orders, issued in March It explains the changes to the court related sections of the Children Act 1989 following provisions in the Children and Families Act The guidance will be re-written in due course to accommodate the provisions in the Social Services and Well-being (Wales) Act scheduled to come into force in April Contact Details Further information is available from: Vivian Cornelius Welsh Government Children s Social Services Fourth Floor North Core Crown Buildings Cathays Park Cardiff CF10 3NQ vivian.cornelius@wales.gsi.gov.uk Telephone:

3 Contents Summary Page 4 Background - Why this is happening? Page 5 What changes are being introduced in Private Law Proceedings? What changes are being introduced in Public Law Proceedings? Page 7 Page 10 Status of the Guidance Page 13 Annex B Relevant Legislation Page 14 3

4 Summary Following a review of the Family Justice System a series of recommendations to reduce delay and complexity in public and private law proceedings were given in the final report of the Family Justice Review in November 2011; the majority of those recommendations were accepted by the UK Government and a number of them are implemented through the Children and Families Act 2014 which received Royal Assent in March 2014 prior to coming into force in April This supplemental guidance is being issued in light of the family justice provisions in the Children and Families Act 2014 and makes reference to the following legislation The Children and Families Act 2014 The Children Act 1989 (the Act) The Adoption and Children Act 2002 The Children and Adoption Act 2006 The Family Procedure Rules 2010 In March 2008 the Welsh Government issued Volume One Court Orders guidance which set out the arrangements that local authorities and their partners must follow in considering and preparing for childcare proceedings. This supplemental guidance was published in April Both this and the 2008 guidance will be regularly reviewed to ensure that they are up to date and will be consolidated and re-written to coincide with the coming into force of the Social Services and Well-being (Wales) Act scheduled for April This supplemental guidance affects the 2008 guidance in a number of areas but particular attention is drawn to the replacement of section 8 Residence and Contact orders with a new Child Arrangements Order, a requirement for separating couples to attempt out of court dispute resolution prior to making application to court (except in certain circumstances), revisions to the Public Law Outline to accommodate a new statutory requirement to conclude most care cases within 26 weeks and revised guidelines on the use of expert witnesses. 4

5 1. Background / Rationale - why this is happening? 1.1 This guidance is being issued to supplement The Children Act 1989: Guidance and Regulations Volume One Court Orders ( 2008 Volume 1 guidance ), that was issued in Wales in March 2008, following the family justice provisions of the Children and Families Act 2014 and changes in practice following the Family Justice Review. It should be read in conjunction with the legislation and associated explanatory notes 1 as well as with wider supporting materials including the revised Public Law Outline 2 and the 2008 Volume 1 guidance This supplemental guidance sets out the changes as a result of the Children and Families Act to both private law and public law proceedings. Public law proceedings, in relation to this guidance, refer to those matters where the state (in the guise of the Local Authority) has concerns about the welfare of children and wishes to intervene in order to protect them. Private Law proceedings may be necessary when separating parents are unable to agree between themselves the arrangements for the care of their children. The content is intended to provide a guide to the law and will be regularly reviewed to ensure it remains up-to-date. It will be re-written to coincide with the coming into force of the Social Services and Well-being (Wales) Act in April In deciding any question about a child s upbringing, the court must treat the welfare of the child as its paramount consideration. This is the case where a local authority is applying to the court for a care order or supervision order (public law proceedings) and in disputes within families (private law proceedings). The guiding principle of the Children Act 1989 is that children are generally best looked after within the family, with their parents playing a full part in their lives and with least recourse to legal proceedings. A court must also have regard to the general principle that any delay in determining the application is likely to prejudice the welfare of the child. No order should be made unless it would be better for the child than making no order at all. 1.4 The Children and Families Act 2014 implements the UK Government s reforms in response to the Family Justice Review 4. The review found that the system was characterised by delays and variable partnership working between local authorities and the courts. The legislative changes are intended to address these concerns and lead to a more cohesive system that delivers better outcomes for children and families. 1.5 Legislative changes will be accompanied by a simplification of the court system which will make it more accessible for families. Family cases will no longer be heard by the County Court or the Family Proceedings Court, but will & 5

6 instead be heard by a single Family Court. Local jurisdictional boundaries will disappear, and proceedings will be allocated to the appropriate level of judiciary, according to complexity. 1.6 In private law, the new legislation is intended to encourage more parents to agree co-operative arrangements for their children so that they do not have to come to court. For cases that do, it will support swift agreements that focus on the needs of the child. In public law, new legislation will tackle damaging delays in court proceedings. The measures will also foster closer working relationships between local authorities and the courts to ensure that children's best interests remain at the heart of decision-making. 6

7 2. What changes are being introduced in Private Law Proceedings? 2.1 This section outlines the private law aspects of the Children Act Chapter 2 of the 2008 Volume 1 guidance defines parental responsibility. It details the out of court dispute resolution process, the different private law orders and the court s decision making process. Out of court dispute resolution 2.2 The focus of this supplemental guidance is primarily on court proceedings. However, private disputes about children s care are usually and should, where possible, be resolved without court intervention. It may be necessary to involve the court where there are safeguarding issues or parental responsibility is required and cannot be obtained without a court order. 2.3 The Children and Families Act 2014 introduced a new statutory requirement for people to first attend a Mediation Information and Awareness Meeting (MIAM) 5, before applying to the court in private law. There are some exemptions to this requirement e.g. where domestic violence 6 is an issue. The potential respondent is also expected to engage in the process. The MIAM enables couples, and other family members, to find out about and consider family mediation and other ways of reaching agreement without the courts. 2.4 The cost of attending a MIAM will depend on whether the prospective parties attend separately or together and whether at least one of the prospective parties is eligible for Legal Aid. If at least one party is eligible for Legal Aid then the total cost of the MIAM attendance can be met by the Legal Aid Agency. If neither party is eligible for Legal Aid then the mediator will agree with the prospective parties how the cost of MIAM attendance is to be met. 2.5 During private law proceedings about children, the court may encourage the parties to use alternative dispute resolution and to facilitate its use. For example it may direct the parties to attend an activity designed to support contact arrangements 7, such as Working Together for Children (WT4C) 8. Section 8 orders 2.6 For cases which proceed to court, section 8 of the Act provides for three different orders: child arrangements orders (introduced by the Children and Families Act 2014); prohibited steps orders; and specific issue orders. These, along with any order varying or discharging such an order, are referred to in the Act as section 8 orders. They are defined as follows: child arrangements order; an order regulating arrangements with whom

8 a child is to live, spend time or otherwise have contact and when a child is to live, spend time or otherwise have contact with any person prohibited steps order; an order that no step which could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. specific issue order; an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. 2.7 The child arrangements order replaces Contact and Residence orders which are removed from legislation by the Children and Families Act A child arrangements order is concerned with the practical arrangements for the care of a child, for example who they live with, and any arrangements for contact with others. More detail about the child arrangements order is given in the following paragraphs. Parental Responsibility 2.8 As a result of the changes made to the Children Act 1989, to reflect the introduction of the child arrangements order, the circumstances when a person named in an order shall have or be ordered to have parental responsibility for the child have been amended and there are some changes. There is a distinction between a child arrangements order that provides for a child to live with and a child arrangements order that provides for a child to spend time with or otherwise have contact. There are also differences depending upon whether the person named in the order is a parent / guardian or some other person. 2.9 Spend time or otherwise have contact : a) Parent: If the court makes a child arrangements order in favour of a father or woman (who is a parent of the child by virtue of the Human Fertilisation and Embryology Act 2008) who would not otherwise have parental responsibility to spend time with or otherwise have contact with the child, the court must also decide whether it would be appropriate for the father or woman to have parental responsibility. If the court decides that it would be appropriate, the court must make an order for parental responsibility. b) Non-parent / guardian: Following changes to the Children Act 1989, by way of the Children and Families Act, if the court makes a child arrangements order to a person (who is not a parent or guardian of the child), who spends time with or otherwise has contact with the child the court may also provide in the order for the person to have parental responsibility for that child. 8

9 2.10 Lives with : a) Parent: If the court makes a child arrangements order that provides that a child shall live with the father or woman (who is a parent of the child by virtue of the Human Fertilisation and Embryology Act 2008) who would not otherwise have parental responsibility, the court must also make an order for parental responsibility. b) Non-parent / guardian: Where the court makes a child arrangements order for the child to live with a person who is not a parent or guardian of the child, that person shall have parental responsibility for the child for as long as the order remains in force so far as providing for the child to live with that person The above paragraphs set out when parental responsibility must or may be awarded by the court following the making of a child arrangements order. Reference in the 2008 Volume 1 guidance to residence and contact must be read, in so far as is appropriate, as child arrangements subject of course to the content of the order, depending upon whether an order provides that a child should live with or spend time or otherwise have contact with. A full list of amendments to current legislation to cover the changes can be found at Schedule 2 of the Children and Families Act Welfare of the Child: Parental Involvement 2.12 Section 1(2A) of the Children Act 1989, introduced by the Children and Families Act 2014, is intended to highlight the importance to a child of a relationship with both parents, and the expectation that, where appropriate, court decisions reflect this. It requires courts to presume, subject to certain conditions, that the involvement of each parent in the life of the child concerned will further the child's welfare. The presumption only applies if the parent concerned can be involved in a way which does not put the child at risk of harm. In any case, the presumption is subject to the overriding requirement that the child s welfare must be the court s paramount consideration. This section does not give parents a right to spend time with a child, and does not relate to the division of a child s time. This section is not being commenced on 22 April but is scheduled to be commenced in the autumn of

10 3. What changes are being introduced in Public Law Proceedings? 3.1 This section outlines the changes to care and supervision proceedings as a result of the Children and Families Act The welfare of the child must be the court s paramount consideration when it determines any question with respect to the upbringing of the child; for example when deciding whether to make an order for the child to be placed in the care of a local authority by the making of a care order. The court will have particular regard to the ascertainable wishes and feelings of the child concerned. In the majority of cases, the court will appoint a CAFCASS Cymru Welsh Family Proceedings Officer as the Children s Guardian to safeguard the interests of the child, unless it is satisfied that this is not necessary. 3.3 A key principle of the Children Act 1989 is that children are generally best looked after within the family, with their parents playing a full part in their lives and with least recourse to legal proceedings. No order should be made unless it would be better for the child than making no order at all. 3.4 Establishing what family support is available for a child is an essential part of the pre-proceedings process conducted by local authorities and should inform their assessment of how best a child s needs can be met. The court will expect a fully reasoned assessment of the local authority s proposed arrangements for the child s care, balancing the advantages and disadvantages in terms of the child s welfare of all realistic placement options. Time limit for Care and Supervision 3.5 When timetabling a case, the court should consider the impact of the timetable on the welfare of the child and the conduct of the proceedings. Proceedings should be disposed of without delay and in any event within 26 weeks beginning with the day on which the application was issued 9.This time limit was introduced by the Children and Families Act There will always be cases which are highly complex for which 26 weeks is not a realistic timeframe for completing the case. In those cases the court has the discretion to extend the timetable where it is necessary to enable the court to resolve proceedings justly It will be possible to grant extensions for periods of up to eight weeks at a time (with no limit on the number of extensions) from the end of the 26 week period (or the end of the extension whichever is the later). 11 In order to prevent unnecessary bureaucracy, requests to extend the timetable for the proceedings will be considered as far as possible during the existing hearings scheduled for the case. Extensions should not be the norm and the court will need to give specific reasons for granting an extension to al involved, 9 This time limit applies to all Part IV proceedings. 10 S. 14 Children and Families Act Full details on expected practice are in the [revised] PLO. 10

11 highlighting why delay has occurred To ensure that cases are resolved without delay and within the 26 week time limit, it is important that the local authority works in partnership with the court administrators, the parents /carers legal representative, CAFCASS Cymru Children s Guardian and any existing or prospective kinship carers. This will help to ensure that cases can be progressed efficiently, particularly where cases have had to be brought very rapidly to the court. By day 2, following the issue of the application, and earlier if possible, the local authority must have copied the application and annex documents to the other parties. 3.9 The President of the Family Division has issued a revised Public Law Outline (PLO) 13 which details the scheduled timetable for the child in order to achieve the 26 week time limit for care cases. All references to the PLO in the Volume One Court Orders guidance should now be read as referring to the revised PLO. Expert Witnesses 3.10 Expert evidence will only be permitted by the court if, in the opinion of the court, expert evidence is necessary to assist the court to resolve proceedings justly 14. The Children and Families Act has placed the requirement that expert evidence must be necessary on a statutory footing. A decision regarding whether or not expert evidence is necessary should be taken at the Case Management Hearing as set out in the revised PLO, with reasons behind the request for an expert s report very carefully considered It is not permissible, without the permission of the court, to have a child medically or psychiatrically examined or otherwise assessed for the provision of expert evidence in family proceedings. If this is contravened the evidence resulting from the examination or other assessment is inadmissible in family proceedings unless the court rules that it is admissible Where permission to instruct an expert is given by the court 15, all parties should work collectively in conjunction with the court to identify the key issues and questions about which the experts opinion is sought. In turn, the reports which experts submit must be of a high-quality and be as concise and conclusive as possible 16. Further advice and details on experts standards can be found at 12 S. 14 Children and Families Act S. 13 Children and Families Act Practice Direction 25A 11

12 Care Plans 3.13 When a court is deciding whether to make a care order, it is required to consider the permanence provisions 17 of the local authority section 31A plans, but is not required to consider the remainder of the plan. This is intended to focus the court s attention on the long term plan for the upbringing of the child i.e. whether the child should live with parents, other family or friends, or be adopted or placed in other long term care provision This does not mean the court is prevented from looking at the detail of the care plan where the court considers it is in the best interests of the child to do so. Rather, it is anticipated that better planning and preparation of cases preproceedings will reduce the need for detailed scrutiny once they have come to court The court will still have a duty to consider local authority contact arrangements between the child and the wider family under section 34(11) The detail of the Care Plan, for example, the day to day plans relating to a child s health or education, is the responsibility of the local authority, who should ensure that it meets that child s needs and circumstances. The ability of the court to focus on the permanence provisions will be dependent on the court s confidence that the plan is relevant and appropriate to meet that child s needs. 17 These are defined as the plans provisions setting out the long term plan for the upbringing of the child, s. 15 Children and Families Act

13 4. Status of the guidance 4.1 This supplemental guidance is issued under section 7 of the Local Authority Social Services Act Local Authorities are therefore required to have regard to, and act in accordance with, this guidance. 4.2 This guidance supplements the 2008 guidance The Children Act 1989: Guidance and Regulations Volume One Court Orders which remains in force subject to the additions and amendments contained in this document and the Children and Families Act It explains the changes to the court related sections of the Children Act 1989 following provisions in the Children and Families Act The guidance will be re-written in due course to accommodate the provisions in the Social Services and Well-being (Wales) Act scheduled to come into force in April

14 Annex A: List of affected legislation In addition to the legislation referred to in the Summary section of this Supplemental Guidance Contact and Residence are replaced with Child Arrangements in: Marriage Act 1949 (c. 76) Children and Young Person s Act 1969 (c. 54) Local Authority Social Services Act 1970 (c. 42) Domicile and Matrimonial Proceedings Act 1973 (c. 45) Mental Health Act 1983 (c. 20) Child Abduction Act 1984 (c. 37) Family Law Act 1986 (c. 55) Child Support Act 1991 (c.48) Armed Forces Act 1991 (c. 62) Adoption and Children Act 2002 (c. 38) Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) The full list of amendments and insertions to the various Acts can be found at Schedule 2 to the Children and Families Act