Public Law Outline A Summary The Public Law Outline

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					                           Public Law Outline: A Summary

1.     The Public Law Outline ("PLO") was published on 13 February. It comes into force on

       Tuesday 1 April 2008. It is part of a quintet of changes which are designed to bring

       about a cultural change in Care and other children’s proceedings.

2.     The other strands to the package are:

        •   Revised Statutory Guidance for the Children Act

        •   A Practice Direction on the use of experts

        •   The provision of funding by the LSC for advice to parents once the Local Authority

            has issued a letter before action.

        •   New Public Law Fees Regulations that will substantially increase the cost for Local

            authorities of issuing Public law proceedings

        The LSC arrangements are not finalised and so this paper will concentrate on the

        Revised Guidance, the PLO and the Experts PD.

3.     The new arrangements concern all cases issued on or after Tuesday 1 April and do not

       change the arrangements for existing cases.

Statutory Guidance

4      The Department for Children, Schools and Families published on 24 January 2008 a

       revised version of The Children Act 1989 Guidance and Regulations Volume 1 Court

       Orders. This replaces the previous edition from 1991. The new Practice Direction (the

       Public Law Outline) appears as Annex B.

Crown Office Row, 119 Church Street, Brighton BN1 1WH
DX: 36670 Brighton 2 t: 01273 625625 f: 01273 698888 e:
5      The new statutory guidance is worth careful study. It stresses the importance of the

       core assessment and the duty to consider an alternative family placement. It stresses at


       “The local authority should ensure, when assessing the wider family and environmental
       factors within the core assessment … that it considers the capacity and willingness of
       the wider family to provide care for the child on a short or a longer-term basis”

6.     As concerns family conferences it states at para 3.8,

        “A family group conference (FGC) can be an important opportunity to engage wider
       friend and members of the wider family at an early stage of concerns about a child,
       either to support the parents or to provide care for the child, whether in the short or
       longer term.… In presenting a care plan to the court in any application for a care order,
       the local authority will be required to demonstrate that it has considered family members
       and friends as potential carers at each stage of its decision making.”

7.     In addition it contains statements of wider effect which may concern the threshold

       criteria such as at 3.9,

       “there are common grounds for making care or supervision orders: the local authority
       must identify the actual or likely significant harm to the child and how this is occurring or
       may occur. Factors such as the child’s parents having learning disabilities or misusing
       substances are not grounds in themselves for making a care or supervision order,
       unless they contribute to the harm suffered or likely to be suffered by the child and
       provide evidence of inadequate, or lack of proper, parenting”

Public Law Outline

8.     The new Practice Direction: Guide to Case Management in Public Law Proceedings has

       been issued by the President of the Family Division and is entitled, Public Law Outline.

       It will replace the Protocol of 2003. It is planned to be of general effect save in

       exceptional circumstances which are to be set out on the face of the relevant order.

9.     The Practice Direction incorporates an overriding objective of, “enabling the court to

       deal with cases justly, having regard to the welfare issues involved.” The PD states that

       this includes factors such as fairness and expedition, proportionality, saving expense

       and ensuring that the parties are on an equal footing. The parties are enjoined to help

       the court further the overriding objective (this is identical to Civil Procedure Rules 1.3)

10.    The PLO is based on an assumption that proceedings may take place over a six month

       timescale rather than the current nine. It is predicated on there being more thorough

       preparation for such applications. It stresses however, that the timescale of a case

       needs to accommodate those of the child.

Pre - Proceedings Phase

11.    The PLO makes a distinction between cases where there are “child in need” or

       “safeguarding” concerns. It is implicit that there is an initial assessment to establish the

       distinction in every case. Common to both is a commitment that the social worker will:

       -   undertake a core assessment

       -   commission any specialist appointments that are required

       -   convene a Family Group Meeting or family meetings as are relevant

       -   carry   out    care    planning    for       the   child   including   consideration   of

           placement/permanence option e.g. kinship placement, rehabilitation or adoption.

12.    Where there are “child in need” concerns there will need to be a Children in Need Plan

       and Services including a Review, where required. As concerns a “safeguarding” case,

       there will need to be a strategy discussion, a s 47 enquiry, Child Protection Conference,

       Child Protection Plan and a discussion of the Core Assessment in the Core Group.

13.    In both cases, where the LA’s concerns reach the s 31 threshold, then a legal planning

       meeting shall be convened. The meeting could decide either to apply for a care or

       supervision order immediately or to arrive at an “in principle decision” and issue a letter

       before proceedings (there is a standard format) and convene a meeting involving the

       social worker, manager, parents and their legal representatives. The purpose of which

       is to agree further action to safeguard he child. If the meeting or any safeguarding plan

       is unsuccessful then proceedings maybe initiated.

14.    The PLO makes provision for the giving of extensive disclosure by the LA at the time

       proceedings are initiated. This will include “Relatives and Friends materials”, key LA

       minutes and records including the Strategy Discussion Record (note within the meaning

       of “Working Together to safeguard Children” (2006)” and notes of discussions with the


Application, Directions and Timetable

15.    Once an application is brought, the Court is to set a timetable which is to be appropriate

       for the particular child and may take account of social, educational and health events as

       well as legal steps e.g. new school place

16.    In the course of the proceedings, provision is made for a number of hearings or


       - The First Appointment

       - Advocates Discussion/Meeting (the name is the clue that the Advocates

           do not necessarily have to meet)

       - Case Management Conference

       - Issues Resolution Hearing (see below)

17.    The PD places particular emphasis on:

       - Standardising directions (Para 5.3 – “The parties must use the case Management


       - identifying the relevant issues and to the monitoring of changes to the same;

       - Case management which will include controlling disclosure and making a distinction

       between that and what actually gets incorporated into the trial bundle.

       -     Facilitating the use of ADR

18.         The Issues Resolution hearing “IRH” is a wholly new animal. It will take place when all

            the reports and evidence have been filed and the matter ready for final hearing. The

            hearing is designed to “narrow and resolve issues” and identify what issues need

            resolution. The court will “examine the most proportionate method of resolving those

            issues.”     The process of “active case management” and rigorous consideration of the

            real issues in the case are expected to reduce the length of final hearings.

19.         The burden for much of the increasing emphasis on case preparation falls on the

            Applicant with the provision of:

            -   Pre-proceedings checklist

            -   Allocation Record and Timetable for the child. This must contain the applicant’s

                allocation proposal and a record of the decision and reasons and timetable for the


      20.       At each stage of the proceedings, the court must consider the issue of allocation. It

                is anticipated that there will be much greater fluidity between the family

                proceedings court and the county court. The County Court may transfer discreet

                issues to the FPC to be determined, (such as a contact issue) and the matter then

                transferred back.

21.         The PLO seeks to establish consistency in representation, an advocate who has

            conduct of the final hearing should ordinarily attend the CMC and the IRH.

22.         The Race Relations (Amendment) Act duty is complied with by a paragraph 6 which

            states that, at each stage, the court will consider giving directions regarding the

            obtaining of evidence about the ethnicity, religion and culture of the child and other

            significant persons. Explicit guidance is given about adults who may be protected

            parties and about appropriate investigation that may be required as to whether they lack

            capacity (Mental Capacity Act 2005).


23.   The President will also issue a Practice Direction entitled, Experts in Family

      Proceedings relating to Childen (PDE). This supersedes the Guidance in The Protocol

      (Appendix C) and the Practice Direction to Part 17 (Experts) of the Family Procedure

      (Adoption) Rules 2005. It remains to be seen whether it will turn out to be more

      successful that these previous attempts (including the Best Practice Guidance) in

      bringing coherence to expert evidence in this field. It is understood that there is a

      determination in the senior judiciary that it should bring about change.

24.   The PDE does not just apply to public law children’s proceedings but rather apples to all

      family proceedings relating to children.

25.   As with the PLO, there is great emphasis on establishing the capacity of relevant adults

      without delay and seeking the assistance of experts as to whether a protected party

      should not give evidence or whether “special measures” (undefined) should be

      contemplated. Stress is put on cultural issues in the PDE but there is no mention of any

      evidence that maybe required to determine whether a party is disabled within the

      meaning of the Disability Discrimination Act 1995 and what reasonable adjustments are


26.   The PDE sets out in detail the duties of experts and gives guidance on the contents of

      their reports (it specifies that they should be given a copy of the PDE with their

      instructions 4.4 (3) (e)). Experts are to be asked at an early stage about any

      representations they wish to make about publicity (in the light of recent cases where

      Doctors have become interveners in cases at the time of Judgment to seek the

      redaction of their names.

27.   Parties who seek to ask permission to instruct an expert have to set out all their details

      and availability to do the work by 11.00am the day before the relevant hearing along

      with draft Directions. This timetable coincides with the deadline for Position Statements

      under the Bundles Practice Direction which has been tightly enforced in the High Court,

28.   A significant (and potentially restrictive) development is that any party who proposes to

      instruct an expert is required to set out “why the expert evidence proposed cannot be

      given by social services undertaking a core assessment or by the guardian”.

29.   The PDE annexes model questions for letters of instruction. These were drafted by the

      Family Justice Council with the aim of reducing the number of questions that experts

      are asked and providing greater coherence to proceedings. Where disagreement arises

      about the contents of a letter of instruction, provision is made for adjudication by a

      Judge – normally to be done by submissions via email (presumably HMCS can no

      longer maintain their stance about communication by email to the County Court).

30.   The PDE stresses the need for letters of instruction to be prepared in all circumstances

      when an expert is used (this includes pre-proceedings and requests for reports from

      treating clinicians.

31.   After the report is filed, greater stress is placed on expert meetings or communication

      between experts to provide greater clarity (even where the experts are from different

      disciplines they are expected to have a global discussion relating to questions that

      concern them (6.3 (1)). A strict timetable is established for clarificatory questions.

      Questions at experts meetings are restricted and it is stressed that those which

      rehearse cross-examination should be rejected.

32.   There is a duty on the party who instructs the expert to keep them up to date with the

      proceedings, and current documentation. An expert is under a duty to advise the lead

      solicitor if they change their opinion, and the reason for the same. The lead solicitor

      must communicate that to the other parties.
33.   The PDE also gives guidance on the arrangements that should be made for experts to

      give evidence. Of note is provision for the court to be informed where all the experts

      agree but one party nevertheless does not accept the agreed view although it is not

      clear what the courts can actually do about this situation.

34.   Within 10 days of the final hearing the solicitor instructing the expert is required to

      advise them in writing of the outcome of the proceedings, and the use made of the

      experts opinion.

                                       Martin Downs, Richard Ager & Adam Smith

                                       Chambers of Philip Havers QC
                                       1 Crown Office Row, Temple
                                       & 119 Church Street, Brighton

                                       14 February 2008

                         FAMILY TEAM

Neville Stevenson-Watt                 Joanne Briggs

Adam Smith                             Susan Healey

Timothy Bergin                         Rachael Claridge

Sarah Buxton                           Francesca Wiley

Christopher Rice                       Camilla Wells

Jules Grant                            Jane Peckham

Jeremy Cave                            Gavin Howe

Christine Bateman                      Richard Ager

Nigel Taylor                           Eleanor Battie

Luisa Morelli                          Daniel Miller