Public Law

They must first try to promote the upbringing of a child within their families - whether this is the parents or members of the wider family.  If, for whatever reason, that is not possible, the Local Authority may apply for a Care or Supervision Order.

To succeed, the Local Authority must show:

• The child's welfare requires an Order to be made

• They have taken account of the Welfare checklist referred to above

• The child is suffering or is likely to suffer significant harm and that harm or likelihood of harm is attributable to:

            i   the care given to the child or likely to be given to him/her not being what it would be reasonable to                  expect a parent to give

            ii   the child being beyond parental control

This paragraph ‘c’ test is known as the Threshold Criteria.

"Harm" means ill treatment, neglect or the impairment of health (physical or mental) or development (physical, intellectual, emotional, social or behavioural).  "Significant harm" is to be judged by comparison to the effect on a similar child.

A Court may make an Interim Order if it is satisfied there are reasonable grounds for believing that these criteria are satisfied, whilst investigations and assessments take place to ascertain what would be best for the child and who is able to meet the child's needs and protect them from harm.

Providing a child has not been adopted, a person who is a party to the original proceedings making the Care Order can make an application to discharge the Care Order at a later stage.  The child’s welfare will be the paramount consideration and the Court has a duty not to make an order discharging the Care Order unless to do so would be of more benefit to the child than not.

A Supervision Order can be made on an interim or final basis.  A final order lasts for 1 year initially, but it can subsequently be extended for a further 2 years on application by the Local Authority.  It imposes a general duty on the Local Authority to advise, assist and befriend the child (and by consequence the carers of the child), but it does not grant PR to the Local Authority - this is retained solely by the carers.

In some cases involving a local authority, they make seek an order under the inherent jurisdiction of the high court relating to a child – a deprivation of liberty order or DOLs.

DOLs is about the court making an order to permit a LA (and delegated to the carers such as a residential unit or foster carer) to confine or restrict the freedoms of a child eg by placing in a secure residential unit, by physical restraint when necessary, by control of mobile device use, or having full supervision when in the community. 

All children are subject to some level of restraint which adjusts with their maturation and circumstances, and this is usually controlled by parents in the normal course of exercising their PR throughout childhood. In a DOLs, a situation has arisen with a child whereby additional constraints that may be considered more restrictive of liberty are necessary to protect and promote the child’s welfare and safety.

What are considered reasonable constraints will depend upon the circumstances of each case, and period for which the restrictions are intended to last.

If a child is to remain in long term foster care, the Local Authority usually has an obligation to promote contact to the child’s parents.  If a parent is not satisfied with the contact arrangements, they can apply to vary a contact order made when the original care order was made, or if no order was made to ask for one.  The child’s welfare will again be the paramount consideration when the Court determines if contact arrangements should be varied.  In certain circumstances the Local Authority can be given permission by a Court to refuse contact with parents. 

This is only where the Court is satisfied it is necessary to safeguard or promote a child’s welfare, i.e. if contact is detrimental or harmful to a child.

A placement Order is an Order authorising a Local Authority to place a child for adoption with any prospective adopters who may be chosen by the Authority.  It continues in force until it is revoked, or an Adoption Order is made in respect of the child or the child marries, forms a civil partnership or attains the age of 18.

Where a child is the subject of a Care Order and the Local Authority decides that the child should be placed for adoption, the authority may either apply for a Placement Order or it may place the child for adoption with consent, if the parents are prepared to give their consent.

The Court may not make a Placement Order unless the child is already subject to a Care Order, the Threshold Criteria are met, or it is satisfied that the child has no parent or guardian. Placement Orders may be revoked, on application to the Court.

Where a Placement Order is made, but the child is yet to be placed, the parents and Local Authority share Parental Responsibility; however the Local Authority can decide the extent to which the parents can exercise parental responsibility.

A parent may not later apply to revoke a Placement Order unless:

a)     the child is not already placed with prospective adopters; and

b)     the Court gives leave (permission) to make an application on the grounds that circumstances have changed since the making of the original Order.

To grant leave, the Court must be persuaded that the change in circumstances is of a nature and degree sufficient to reopen the consideration of the issue.

Unless there has been a change in circumstances since a Placement Order and the Court gives leave to do so, a parent will not be able to oppose a subsequent application for an Adoption Order.

An Adoption Order extinguishes Parental Responsibility which any person has and gives full Parental Responsibility for the child to the adopters.  The natural parents cease to be the child’s parents in law.  When an Adoption Order is made, it also extinguishes any other Orders, such as a Care Order, Contact Order, Residence Order or Special Guardianship Order. Post adoption contact is rare, but the court can be invited to consider such provision when making an adoption order. The child’s welfare is always the court’s paramount consideration in any determination.

CONFIDENTIALITY AND PUBLICITY

All proceedings relating to children are in private. All information is privileged and confidential to the proceedings.  It should not be discussed, nor any documents disclosed to any third party without the prior permission of the Court. However, from 27 April 2009 accredited media representatives have a right to attend some family proceedings.  There is however no right for media representatives to receive or read Court documents or written submissions or judgments without permission of the Judge.  The Judge also has the power to exclude media representatives as follows:

1)     When it is necessary to restrict access to all or part of the proceedings:

a.     in the interest of any child concerned or connected with the proceedings.

b.     for the safety or protection of party, a witness or person connected with such a party

c.     for the orderly conduct of the proceedings, i.e. there is not enough room to accommodate media representatives.

2)     Where justice will otherwise be impeded or prejudiced, i.e. a witness refuses to give evidence or in financial provision cases where sensitive financial information is being given.

If the Court excludes media, it must give brief reasons for doing so.