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Home > Articles > 2014 archive

Children and Families Act 2014 – A Guide for Public Children Lawyers

Jennifer Kotilaine, barrister, of 42 Bedford Row explains the changes introduced by the Children and Families Act 2014 of most interest to public children lawyers.

Jennifer Kotilaine, barrister, 42 Bedford Row

The Children and Families Act 2014, which received Royal Assent last month, will come into force on 22 April 2014. For public law practitioners, it sets out on a statutory basis certain changes that have already been implemented in practice, relating to the timetable of proceedings and expert evidence.  But there are also more substantive changes relating to care plans, adoption, and contact after adoption. This article provides a brief summary and discussion of some of the more important changes of which public law practitioners need to be aware.

Main areas of change:


Time limits

Section 14 of the 2014 Act
deals with time limits and timetables in care, supervision and other family proceedings. 

The Act places the 26 week timetable set out in the revised Public Law Outline [PD 36C] on a statutory footing by way of insertions into s 32 CA 1989.  It also removes the time limits imposed on interim care or supervision orders through amendments to s 38 CA 1989.

Timetable of 26 weeks
Section 32(1)(a) requires the court to draw up a timetable with a view to disposing of an application

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with the day on which the application was issued.

'With a view to' suggests some room for flexibility. However Sir James Munby P has made clear that this is not the plan. In his President's View No. 1 (April 2013), which he has now incorporated into his recent judgment in the Bournemouth and Poole County Court Re S (A Child) [2014] EWCC B44 (Fam), he writes:

'this deadline can be met, it must be met, it will be met. And remember, 26 weeks is [ . . .] a maximum, not an average or a mean.  So many cases will need to be finished in less than 26 weeks.'

The 26 week deadline may suit cases dealing with single children that do not require split hearings, where no independent experts are instructed, and where the issue is that of neglect, but may be problematic in other cases.

The Act makes provision for proceedings to extend beyond 26 weeks in certain circumstances, although not by accidental drift. Instead the timetable can be deliberately changed by way of 'revision', and one case of revision is 'extension' (including beyond 26 weeks).

Revision
Having drawn up a timetable at the commencement of proceedings, the court may subsequently revise it under s 32(4). In deciding whether such revision is necessary, the court must have regard to

(a) the impact which any revision would have on the welfare of the child to whom the application relates; and

(b) the impact which any revision would have on the duration and conduct of the proceedings.

There will of course be instances where, as part of the revision of the timetable, the overall duration of the proceedings will have to be extended. A special case of revision is revision by 'extension'.

Extension
Once proceedings are underway, it is possible, under s 32(5) to extend the overall timetable (even beyond 26 weeks) by increments of up to eight weeks, but

only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

Extensions will be very much an exception to the general 26 week rule. Guidance is provided to the court in s 32(7):

Extensions are not to be granted routinely and are to be seen as requiring specific justification.

When deciding whether an extension to the timetable should be granted, s 32(6) stipulates that the court must have regard to exactly the same considerations as in revision, namely

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here "ensuing timetable revision" means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

Guidance on when extensions are likely to be necessary is included in a recent case Re S, which was decided by Sir James Munby P last month.  Although it is a county court judgment and therefore not binding on the High Court under stare decisis, it is surely designed to be treated as if it were a High Court decision. At para 33 in his judgment, he lists three different contexts in which extensions beyond the 26 week timetable may be necessary under s 32(5):

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. [  . . . ]  Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed [ . . .] (b) FDAC type cases [ . . .] (c) cases with an international element where investigation or assessment have to be carried out abroad and (d) cases were the parent's disability require recourse to special assessments or measures [ . . .]

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks.  Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly 'derailed' because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks.

This last class of extension corresponds with the situation in  Re B-S (Children) [2013] EWCA Civ 1146 where, at para 49 Sir James  Munby P allows that  'If, despite [robust case management], the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks.'  Although Re B-S dealt with a proposed non-consensual adoption, the larger point is that 'rigorous adherence to an inflexible timetable [may lead to] justice thereby potentially denied.' 

Secondary legislation
It is worth noting that the 26 week limit can also be amended by subsequent secondary legislation.  A longer (or shorter!) default timetable can be imposed by the Lord Chancellor by way of secondary legislation under s 32(9).  Under the same section, the Lord Chancellor can also change the statutory extension period which, under s 32(8) is currently 8 weeks.  Even if the 26 week time limit stays the same, extensions may become shorter (or longer).  Expect tinkering, or at least threat of tinkering.

Interim orders
Section 14 of the 2014 Act also removes time limits for interim care and supervision orders by doing away with paragraphs (a) and (b) of s 38(4) of the 1989 Act.   The first interim order no longer expires after 8 weeks, and subsequent 4 week extensions are no longer required.  Interim orders, once granted, will now last until the disposal of proceedings.

While there is now a statutory limit for the timetable (subject to revision and/or extension, as above), time limits for interim orders have fallen by the way side.  It may be that with shorter proceedings, there is less danger of a child languishing in what is meant to be a temporary situation. However, there is also less scope for parents to argue change in circumstances that might militate against continuing with an interim order as there is no procedure by which the matter is routinely kept under review. Of course, since the Act does not make provision against such review, judges may consider that they are left at liberty to conduct such reviews as and when they see fit.


Evidence

Section 13 of the 2014 Act deals with the control of expert evidence and assessments in children proceedings.  It puts on statutory footing the rules set out in FPR 25, specifically FPR r 25.1-5, relating to the court's duty to restrict expert evidence. 

In s 13(8) of the 2014 Act 'experts' are defined in the negative:

(8) References in this section to providing expert evidence, or to putting expert evidence before a court, do not include references to—

(a) the provision or giving of evidence—

(i) by a person who is a member of the staff of a local authority or of an authorised applicant,

(ii) in proceedings to which the authority or authorised applicant is a party, and

(iii) in the course of the person's work for the authority or authorised applicant,

(b) the provision or giving of evidence—

(i) by a person within a description prescribed for the purposes of subsection (1) of section 94 of the Adoption and Children Act 2002 (suitability for adoption etc.), and

(ii) about the matters mentioned in that subsection,

(c) the provision or giving of evidence by an officer of the Children and Family Court Advisory and Support Service when acting in that capacity, or

(d) the provision or giving of evidence by a Welsh family proceedings officer (as defined by section 35(4) of the Children Act 2004) when acting in that capacity.

Although social workers and CAFCASS officers are expressly excluded from the statutory definition of 'expert,' they are nonetheless very much meant to be viewed as experts by the court.  As Munby P explained in evidence before the Public Bill Committee of the House of Commons:

'When I say "expert", I mean expert with a capital E, because, in my book, social workers are experts. In just the same way, CAFCASS officers are experts. What has gone wrong with the system is that we have at least two experts in every care case—a social worker and a guardian—and yet we have grown up with the culture of believing that they are not really experts and we therefore need experts with a capital E. Much of the time we do not.' HC Deb 5 March 2013 col 33.

However, the issue surely is not that social workers and guardians lack expertise, but that their role in the proceedings is not that of an impartial or independent expert.  (For a recent case on a guardian as a not 'neutral' party see MW v Hertfordshire County Council [2014] EWCA Civ 405.) There is now a higher statutory hurdle for independent expert evidence. It is restricted to those instances where it is 'necessary' (as to which, see below).

It is interesting, therefore, to note that the Act introduces a minor tweak to the 'necessary' test which may well address this imbalance.  In FPR 25.1, expert evidence (in the capital E sense) is restricted to what is 'necessary to assist the court to resolve the proceedings.'  Under s 13(6) of the Act, however, the court may give permission for the instruction of independent experts where 'necessary to assist the court to resolve the proceedings justly.'  This seemingly small addition—which simply reasserts the overriding objective in FPR r 1.1—refines the 'necessary' test in a way that may well assist parents and that in any case echoes the concern raised in Re B-S about 'justice potentially denied.'

It is worth noting that the refined 'necessary test' has now also been added to s 38 of the 1989 Act where the court is considering making direction regarding medical or psychiatric assessment of a child during proceedings.

The word 'necessary' has been defined in Re H-L ( A Child) [2013] EWCA Civ 655 at para 3 by way of reference to Re P (Placement Orders. Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]: 

'it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable." In my judgment, that is the meaning, the connotation, the word 'necessary' has in rule 25.1.'


Care plan

Section 15 of the 2014 Act
repeals section 121(1) of the Adoption and Children Act 2002 and substitutes s 31(3A) of the 1989 Act. The effect is to restrict the aspects of a care plan that a court is to take into account when considering whether to make a care order.  The court is now only  

(3A) ...

(a) required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

Apart from the 'permanence provisions', the only other aspect of the care plan that the court need consider (as required by s 34(11) of the 1989 Act) are the proposals for contact . The court is not required to consider any other proposed provisions that deal with the emotional, health, education, social, etc needs of the child(ren) before arriving at a decision.  So far as adoption is concerned, this contradicts and compromises the recent line of cases flowing from Re B (Care Proceedings: Appeal) [2013] UKSC 33 where it was held that adoption can only be ordered when 'nothing else will do' (paras [145] & [198]). Re B's proportionate approach has been developed in subsequent case law, including, among others, Re B-S and Re G (A Child) [2013] EWCA Civ 965 where McFarlane LJ held at para 50 that 'the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing.'  It is difficult to see how a 'global, holistic evaluation' can possibly be achieved in the light of the statutory limitation on what part of the care plan must be considered by the court. Either the permanence provisions of a care plan will have to include much more detail than hitherto, or judges will simply continue to consider the rest of the care plan even in the absence of a strict requirement to do so. 


Contact while in care

Section 8 of the 2014 Act tidies up an inconsistency in the 1989 Act by inserting in  s 34 a reference to a local authority's duty under s 22(3)(a), namely the duty to safeguard and promote the welfare of any looked-after child.  The amended s 34(1) now reads:

34(1) Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section and their duty under s 22(3)(a)) allow the children reasonable contact with

(a) his parents;

(b) any guardian or special guardian of his;

(ba) any person who by virtue of section 4A has parental responsibility for him;

(c) where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and

(d) where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, that person.

The 2014 Act also resolves an inconsistency in the 1989 Act by which local authorities were under a duty under para 15(1) of Schedule 2 to promote contact between a child in care and his parents, anyone who is not a parent but has parental responsibility for him, and any relative, friend or other person connected to him without allowing the local authority to refuse to offer contact under the s 34(6) exception.   A new para 6A is therefore inserted into s 34:

(6A) Where (by virtue of an order under this section, or because subsection (6) applies) a local authority in England are authorised to refuse to allow contact between the child and a person mentioned in any of paragraphs (a) to (c) of paragraph 15(1) of Schedule 2, paragraph 15(1) of that Schedule does not require the authority to endeavour to promote contact between the child and that person.


Adoption

The 2014 Act makes a number of changes to the law relating to adoption.  The most significant for practitioners are:

  1. Placement of children with prospective adopters
  2. Repeal  of ethnicity requirement
  3. Contact post adoption: new jurisdiction.

Placement of children with prospective adopters
Section 2 of the 2014 Act
introduces new sections 9A, 9B, & 9C into s 22C of the 1989 Act:

(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and—

(a) are considering adoption for C, or

(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.

(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,

(b) the local authority must consider placing C with an individual within subsection (6)(a), and

(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.

(9C) Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.

The effect of these sections is to fundamentally rebalance the priorities for local authorities who are considering adoption so that achieving stability for the child is paramount. As was suggested by Lisa Nancy MP in the committee stage of the Bill's passage through the House of Commons, 'stability should be seen in its own right as a safeguarding factor for children in the care system.' (HC Deb, 12 March 2013, col 159) If, after ruling out placing the child with a 'relative, friend or other person connected with C and who is also a local authority foster parent' (as in s 22C(6)(a)), then a local authority must place a child with a foster parent who has already been approved as a prospective adopter.  This new duty trumps other considerations that would otherwise apply in subsections (7) –(9) of s 22C, such as proximity to the child's home, disruption of the child's education or training, placement with siblings, disability needs (if any).  A fostering for adoption placement is meant to afford a child with stability, even though this may mean that a child suddenly finds herself at a new school, far away from home, and separated from siblings.  This means that the placement may have adverse consequences for contact with a child who is in such a placement.

While fostering for adoption placements are available when the local authority considers that adoption is the most suitable final outcome for a child, it is of course ultimately for the court to decide whether adoption is in the child's best interests.  Any stability achieved through such a placement during the course of proceedings can therefore only be viewed as provisional.

Repeal of ethnicity requirement in England
Section 3 of the 2014 Act
amends s 1(5) of the Adoption and Children Act 2002.  The requirement than an adoption agency 'must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background' now applies only to adoption agencies in Wales.

Post adoption contact
Section 9 of the 2014 Act
deals with post adoption contact. It introduces two new sections (s 51A & s 51B) into the Adoption and Children Act 2002.

Section 51A deals with who may make applications for post adoption contact while s 51B (not reproduced here) covers the content and duration of orders made under s51A:

51A Post-adoption contact
(1) This section applies where—

(a) an adoption agency has placed or was authorised to place a child for adoption, and

(b) the court is making or has made an adoption order in respect of the child.

(2) When making the adoption order or at any time afterwards, the court may make an order under this section—

(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or

(b) prohibiting the person named in the order under this section from having contact with the child.

(3) The following people may be named in an order under this section—

(a) any person who (but for the child's adoption) would be related to the child by blood (including half-blood), marriage or civil partnership;

(b) any former guardian of the child;

(c) any person who had parental responsibility for the child immediately before the making of the adoption order;

(d) any person who was entitled to make an application for an order under section 26 in respect of the child (contact with children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;

(e) any person with whom the child has lived for a period of at least one year.

(4) An application for an order under this section may be made by—

(a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made,

(b) the child, or

(c) any person who has obtained the court's leave to make the application.

(5) In deciding whether to grant leave under subsection (4)(c), the court must consider—

(a) any risk there might be of the proposed application disrupting the child's life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act),

(b) the applicant's connection with the child, and

(c) any representations made to the court by—

(i) the child, or

(ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made.

(6) When making an adoption order, the court may on its own initiative make an order of the type mentioned in subsection (2)(b).

(7) The period of one year mentioned in subsection (3)(e) need not be continuous but must not have begun more than five years before the making of the application.

(8) Where this section applies, an order under section 8 of the 1989 Act may not make provision about contact between the child and any person who may be named in an order under this section.

The court will no longer be able to make a s 8 contact order with any child who has been adopted.  Instead, the procedure for applying for a contact order is made under s 51A.

While the child, the local authority, or the adoptive family may make a s 51A application without leave of the court, the birth family require leave.  In deciding whether or not leave should be granted, the court must consider the extent to which allowing such contact would disrupt the child's new life, the applicant's connection to the child, and any representations made to the court by the child or the adoptive family. Given that fostering for adoption placements have priority over keeping siblings together, it is conceivable that [elder] siblings may resort to s 51A for contact, particularly when contact which has been proposed in a care plan has not been maintained after adoption. 

Section 51A can also be used to prohibit contact although it is difficult to see how, in an age of social networking, this can be enforced meaningfully without a penal notice. 

Any s 51A order can include directions or conditions that the court deems appropriate. When an application is made or when the court decides to continue making an order on its own initiative, the court must establish a timetable to determine the application without delay.  A s 51A order will last until the child turns 18, or further order.


Brief final remarks

Although much of the emphasis of the Act so far as public family law is concerned is on expediting proceedings, there are some – though not many – points at which the Act concedes that expedition may be the enemy of justice or child welfare and provides accordingly (eg ss 13 & 14).    It will be interesting to see what effect these statutory concessions have in practice moving forward. Pauffley J recently said in Re NL [2014] EWHC 270 (Fam) at para 40: 'Justice must never be sacrificed upon the altar of speed.' And Sir James Munby P reiterates and endorses the point in Re S at para 29. However, this is not what the 2014 Act says. Instead, it says that proceedings may take longer than 26 weeks when this is 'necessary to resolve the proceedings justly.' This still allows that justice may be sacrificed on the altar of speed when a reduction of speed would merely be desirable or helpful in resolving the proceedings justly.  To this extent, the necessity requirement tends to give priority to speed over justice.

17/4/14