This Social Care Wales, resource, ‘Evidence Matters’, advises social workers going to court in care proceedings.
An application to court by the local authority is necessary when:
The child’s welfare can only be safeguarded and promoted if the local authority acquires parental responsibility for the child under a care order
The child’s welfare can only be safeguarded and promoted if the local authority immediately acquires parental responsibility for the child under an emergency protection order.
Social workers may also be required to participate in some private law court proceedings in respect of
- child arrangements orders
- court direction for a report under section 37 Children Act 1989
- special guardianship orders.
These applications are explained below:
Section 31 Children Act 1989 sets out the requirements for a care order, known as the ‘threshold criteria’. The same criteria apply to making a supervision order.
s 31(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.
The burder of proof is on the local authority to establish that these criteria are met, namely:
- the child was suffering significant harm, or was likely to, at the date the local authority intervened
- the harm or likelihood of harm is attributable to the child’s parent(s).
(Applications on the basis of s 31(2)(b)(ii) are rarely, if ever, made.)
If the threshold criteria are established, the court may then make a care (or supervision) order if this is in the child’s welfare. The court will consider the range of possible orders under the Children Act 1989. This decision is made by the court applying the ‘welfare checklist’ under section 1(3) Children Act 1989.
While proceedings are under way, the local authority may be granted an interim care order (ICO) under section 38 if it has proved to the court that there are reasonable grounds to believe that the threshold criteria are reached. An interim order will stay in place until the next court hearing.
Before applying to court, the local authority will follow the Pre Proceedings stage of the Public Law Outline.
Most of the resources on the Court Orders and Pre-proceedings website apply to Wales. The site, produced by Research in Practice for the Department for Education in England has very extensive resources on assessments, procedures and documents in both the Pre-Proceedings stage and in court proceedings under the Public Law Outline. It includes up-to-date guidance on partcipating in proceedings since the reforms in the Children and Families Act 2014 – the 26 week time limit and less use of independent expert witnesses. The concepts, principles and recommendations for good practice set out on the site can usefully be applied in Wales.
However, it should be noted that the 2014 guidance referred to on the website does not have the status of statutory guidance in Wales and is not enforceable in Wales. Direct references to ‘guidance’ on this site may not be reflected in statutory guidance in Wales.
In particular, the following are not part of the law in Wales. We have given the nearest Wales equivalent in brackets.
- Court Orders and Pre Proceedings for local authorities – Department for Education April 2014. (Children Act 1989 Volume 1 Guidance and Supplemental Guidance – Welsh Government 2008; 2014)
- Working Together guidance – Department for Education March 2015. (Working Together to Safeguard People vol 5 – Welsh Government 2018)
- the Common Assessment Framework (not applicable)
- the Framework for Assessment of Children in Need – Department for Education March 2015 (Framework for Assessment of Children in Need, adapted in Part 3 Code of Practice Annex 2)
- Research in Practice: Evidence Matters in Family Justice (Social Care Wales/Research in Practice Evidence Matters handbook and materials)
- services provided by Family Rights Group (FRG is funded to work with families in England but many of the resources on its site can be helpful in Wales)
- Care Planning Guidance (Codes of Practice Parts 3, 4 and 6).
Outcomes of an application for a s 31 care order
The court will consider the range of Children Act 1989 orders that it has the power to make, having regard to the welfare checklist. This could be:
- no order.
- a care order, which has the effect that parental responsibility is exercised by the local authority.
- a supervision order, which last for up to 12 months, during which the local authority must appont a social worker to advise, assist and befriend the child.
- if there is a suitable carer, child arrangements orders for residence (and possibly contact).
- if there is an application by a suitable carer, and a special guardianship report by the local authority, a special guardianship order.
A care order lasts until the child turns 18 or the order is discharged by an application under section 39.
Emergency protection order (EPO)
Under section 44 Children Act 1989, the court can grant an emergency protection order for up to 7 days on the following grounds:
- the court is satisfed that the child is likely to suffer significant harm if the child is not removed, or that a child shoud not be moved (for example from a hospital)
- the local authority is undertaking a section 47 enquiry and is being prevented from seeing the child.
Under s 44, any person can apply for an EPO on the first of the grounds above. Such an application would trigger the local authority section 47 duty to investigate.
The effect of the order is that the local authority can move the child to a safe place and will share parental responsibility, which it can exercise.
Applications are made to a magistrate in the Family Court. An EPO can be extended on application by one further period of 7 days but it will normally be replaced by an application for an interim care order. An EPO has been described by the courts as ‘draconian’ and ‘extremely harsh’ and should only be made where imminent risk has been established.
Child arrangements orders
Child arrangements orders are made under section 8 Children Act 1989, usually for residence or contact. (Prior to April 2014, these orders were called ‘residence orders’ and ‘contact orders’.) A section 8 application cannot be made by a local authority. Social workers may become involved in section 8 proceedings when:
- there is a dispute between family members in section 8 proceedings and the family is known to children’s services, the court may direct a welfare report under section 7 be produced by the local authority rather than Cafcass Cymru
- child protection concerns arise in a section 8 case
- during care proceedings, an alternative potential kinship carer may be proposed and an assessment is required as to their suitability to be granted a child arrangements order for residence.
Section 37 report
If, in an application under section 8, the evidence leads the court to believe that a care order might be appropriate, the court can make a direction under section 37 for a local authority to undertake an investigation on the child’s circumstances.
Where an application for special guardianship is made, the local authority is required to submit a report in accordance with the Special Guardianship Code of Practice.
See the kinship care page for more information about SGOs.
Under a care order, interim care order, or emergency protection order, parental responsibility (PR) is shared between the local authority and the parents (or who previously held PR) and child is looked after.
Recent decisions made in the higher courts (High Court; Court of Appeal; Supreme Court) and in some Family Court cases can be read on this free website – BAILII.
The Transparency Project aims to make family cases clearer.