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New Childcare Law in the Public Law system?

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Childcare solicitor, Stacy Fox, looks at the changing public law landscape in England and Wales and it implications for family law and cases involving children.

2013 saw substantial changes introduced into the public law system.  A pilot scheme is currently in place across England and Wales, between 1st July 2013 and 31st March 2014.  Focus is very much on analysing information at the start of proceedings and throughout the proceedings and cases are expected to conclude within 26 weeks.

The focus on cases concluding within 26 weeks led to concerns about whether children could still be reunited with their parents or placed with family / friends; would there be sufficient time to carry out assessments or trial placements?  Would there be an increase in placement applications, so that children are placed for adoption outside the family?

Putting children first

Case law in 2013 has made it clear that the emphasis on concluding cases within an appropriate timescale for the child is not to be done at the cost of putting all the facts before the court and considering all the options for the child.

Case law

Re: P [2013] EWCA 693; this case re-iterated the need for active thought at the outset of a care case. The court should conduct the following exercise:

(a) Identify the nature of the harm that would occur in the parents care and how likely it is to occur.

(b) Consider whether any concerns about the parents care can be alleviated by (i) family support (ii) social services support or (iii) therapy.

(c) Identify what risk remains once additional support is added into the equation.

(d) Weigh the remaining risk against the positive features of the parents’ cases and the benefits to the child of living with their birth family.

Re: B-S [2013] EWCA Civ 1146; this case invites the court to properly analyse the local authority’s facts and information when a care plan concerns adoption.  This case made it clear that a plan of adoption should only be approved by the court when it is of a matter of necessity.  Only when all the alternative options have been fully considered should a plan of adoption be approved.

Re: B (a child) [2013] UKSC 33; in this case the court reminded us that we are to look at the positives and negatives of placing a child away from their family.  The Court must consider a “balance sheet” approach, where there is consideration of the positives and negatives of each possible plan for the child.

Adoption

Adoption is a last resort decision for the court to make, only after all the other options have been properly considered and weighed.  It is unfortunately the case that adoption will ultimately be the correct decision for some children; that has always been the case.  But what has happened previously is that the local authority have got to a decision that adoption is appropriate and this has been approved by the court without proper analysis of all the information in-between.  All evidence should be gathered and analysed.  Assertions that are denied are not facts to be relied on unless there is evidence in support of those assertions.

It has become clear that these cases are not “new law” at all; they are a reminder to the courts, local authority CAFCASS and all solicitors/barristers that we are making extremely important decisions in respect of children and should do so properly to ensure that it is the correct decision that is ultimately made by the court.

Speak to a Childcare Law solicitor

To speak to Stacy Fox, our Head of Childcare Law, call 0161 785 3500 or email enquiries@pearsonlegal.co.uk.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

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