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The Revised Public Law Outline .... and this time they mean it

Andrew Pack, care lawyer with Brighton & Hove City Council, explains and comments on the changes made by the recently published Revised Public Law Outline.

The President of the Family Division has published a new Practice Direction 36C, which then introduces a revised Public Law Outline ('revised PLO') as a pilot.

The commencement of the revised PLO will be determined by local courts, and will be on one of four dates:

Following comencement, the revised PLO will operate in all public law family proceedings undertaken in that court. Such proceedings include applications for care orders, supervision orders, variations of supervision orders, contact with a child in care, change of a child's surname whilst they are in care and the little used education supervision orders.

The purpose of the revised PLO is to move such cases towards a resolution within 26 weeks, in accordance with both the recommendations of the Family Justice Review and the Children and Families Bill currently moving through Parliament.

Alterations to the structure of social work statements
The revised PLO sets out a defined structure for social work statements and requires that social work statements are limited to that structure.

They adopt the 'cascading' approach with the most important information being at the start of the document – the summary of what is sought and why, and the welfare checklist – rather than at the end as has become customary.

Alterations to the documentation to be filed at issue of proceedings
The revised PLO breaks all documents into three categories:

(a) Annexe Documents – those which are to be filed and served and be placed in the court bundle [social work statement, chronology, care plan, threshold document, social work assessments which are relied upon in the statement];

(b) Evidential Documents – those which are to be served on the parties but not placed into the bundle [previous court orders and facts and reasons/judgments, information from other agencies, previous court reports]; and

 (c) Decision-Making Records – those which are to be made available to the parties on request, but will not form part of the court bundle [letters before proceedings, child in need plans, key local authority meetings and minutes].

It may seem a little perplexing that the documents which are often the trigger event [the written agreement that arises from the meeting before action and the minutes of that meeting] won't actually be before the court for the first contested interim care order hearing, and one suspects that this will be the first (of possibly many) points of guidance that is ignored in practice, to prevent inordinate delay of advocates, clients and courts having to read additional papers which would fit into category (c ) at the hearing after the court grants permission for them to be introduced.

It is also worth noting that the local authority threshold document is to be limited to no more than two pages.

The court will direct that the Guardian file an initial case analysis, which it appears likely would be before the case management hearing  ('CMH') on day 12, which must incorporate an analysis of the key issues that need to be resolved in the case  including:

(a) a threshold analysis;
(b) a case management analysis, including an analysis of the timetable for the proceedings, an analysis of the Timetable for the Child and the evidence which any party proposes is necessary to resolve the issues;
(c) a parenting capacity analysis;
(d) a child impact analysis, including an analysis of the ascertainable wishes and feelings of the child and the impact on the welfare of the child of any application to adjourn a hearing or extend the timetable for the proceedings; and
(e) an early permanence analysis including an analysis of the proposed placements and contact framework.

Alteration to the naming and purpose of hearings
It appears that the revised PLO envisages that the first hearing will be the CMH by day 12, UNLESS the court is notified of the need for a contested interim care order hearing that needs to take place before day 12.

There will be an advocates' meeting no later than 2 clear days before the CMH, at which the advocates (and any litigant in person) will:

Thus it appears that in any case where an interim care order is not sought prior to the CMH, any counsel representing the parent at an advocates' meeting prior to the CMH will not have had that initial hearing to meet with them, take instructions and consider the papers, to consider and advise them as to whether experts are required and, if s,o what questions would need to be covered. Either the advocates' meeting will be 'in the dark', or applications for funding of a conference would need to be made, or the solicitor would need to find time in the first 12 days of the proceedings to have those detailed discussions with the parent.

At the CMH the court will define the key issues in the case, identify the evidence that will be required to resolve those key issues, set a timetable for the child, and make case management directions to conclude the case within 26 weeks.

The revised PLO envisages the possibility of a further case management hearing (FCMH) but says that this must not take place later than day 20.

There is no express provision for directions hearing or any court hearing between this FCMH (day 20) and the issues resolution hearing.  But then, there was no such express provision in the Protocol or the previous PLO and that did not curtail such hearings regularly taking place.

The next stage would be an advocates' meeting prior to the issues resolution hearing, and this must be no later than 7 days prior to the IRH.

The advocates are given firm instructions and boundaries as to what they must achieve at this advocates' meeting. They are: 

- the remaining key issues and how the issues may be resolved or narrowed at the IRH including by the making of final orders
- the further evidence which is required to be heard to enable the key issues to be resolved or narrowed at the IRH
- the evidence that is relevant and the witnesses that are required at the final hearing
- the need for a contested hearing and/or time for oral evidence to be given at the IRH

- notify the court immediately of the outcome of the discussion at the meeting
- file a draft Case Management Order with the court by 11a.m. on the working day before the IRH.

In a new development, the revised PLO makes it plain that where hearing oral evidence on a deadlocked issue would resolve the case or crystallise the issues, the Court MUST do so. This has rarely been the case previously, when the IRH tended to go little further forward than identifying that there was a dispute and establishing the duration of the final hearing to resolve that dispute.  If the parties seek oral evidence to be heard at the IRH, they must notify the court in advance and seek any directions that are required.

At the IRH these actions will take place: 

- Any extension of the timetable for the proceedings which is necessary
- Filing of the threshold agreement or a statement of facts/issues remaining to be determined
- Filing of:

o Final evidence & Care Plan
o Case Analysis for Final Hearing (if required)
o Witness templates
o Skeleton arguments

- Judicial reading list/reading time, including time estimate and an estimate for judgment writing time
- Ensuring Compliance with PD27A (the Bundles Practice Direction)
- Listing the Final Hearing.

Duration of proceedings
Prior to the Children and Families Bill becoming an Act of Parliament, this is the major change in the revised Public Law Outline. The current working target of 40 weeks becomes a hard deadline of 26 weeks.

6.1 The court is required to draw up a timetable for proceedings with a view to disposing of the application without delay and with the aim of doing so within 26 weeks. If proceedings can be resolved earlier, then they should be. A standard timetable and process is expected to be followed in respect of the giving of standard directions on issue and allocation and other matters which should be carried out by the court on issue, including setting and giving directions for the Case Management Hearing.

The guidance then goes on to deal with the circumstances in which a case might take longer than 26 weeks:

6.2  Having regard to the circumstances of the particular case, the court may consider that it is necessary to extend the time by which the proceedings are intended to be resolved beyond 26 weeks to enable the court to resolve the proceedings justly. When making this decision, the court is to take account of the guidance that extensions are not to be granted routinely and are to be seen as requiring specific justification. The decision and reason(s) for extending a case should be recorded in writing (in the Case Management Order) and orally stated in court, so that all parties are aware of the reasons for delay in the case. The Case Management Orders must contain a record of this information, as well as the impact of the court's decision on the welfare of the child.

The intention would be that an extension would be for 8 weeks, but the revised PLO makes it plain that where further extensions are required to resolve the case justly, the court may do so, but that it will need to be clearly recorded on the face of the order why such a decision was made.

6.4 If the court agrees an extension is necessary, the intention is that an initial extension to the time limit may be granted for up to eight weeks (or less if directed) in order to resolve the case justly, meaning that the maximum time limit for proceedings will be 34 weeks. If more time is necessary, in order to resolve the proceedings justly, a further extension of up to eight weeks may be agreed by the court. There is no limit on the number of extensions that may be granted in a particular case.

6.5 If the court considers that the timetable for the proceedings will require an extension beyond the next eight week period in order to resolve the proceedings justly, the Case Management Order should —

(1) state the reason(s) why it is necessary to have a further extension;
(2) fix the date of the next effective hearing (which might be in a period
shorter than a further eight weeks); and
(3) indicate whether it is appropriate for the next application for an extension of the timetable to be considered on paper.

What is interesting with these aspects is that, much like the Children and Families Bill, there is no attempt to give guidance or factors that might justify a case going beyond 26 weeks. To an extent, this is sensible, since drafting such a set of factors would either omit something unpredictable OR be so widely drawn that almost any case could be incorporated into it (a common refrain in the Family Justice Review is that every lawyer considers their individual case to be 'exceptional' – the illusory superiority effect, where everyone considers themselves to be above average intelligence and an above average driver…

Having said that, this places the individual court, grappling with an application not to conclude the proceedings, but to grant an 8 week extension, somewhat on its own when deciding whether to grant or refuse that extension. It may well be that the theme is developed further in Court of Appeal judgments.

4/6/13