Attendance of solicitors at local authority Children Act meetings

9 January 2013

1 Introduction

1 Introduction

1.1 Who should read this practice note?

Solicitors working in family law, particularly children's law.

1.2 What is the issue?

The following practice note has been prepared by the Law Society's Children Law Sub Committee in consultation with the Solicitor's Regulation Authority. It represents an updated version of guidance originally issued in April 1994 and updated in June 1997 which dealt only with the role of solicitors employed by the local authority called upon to attend Child Protection Conferences.

This practice note remains relevant to solicitors representing children, parents or other parties involved in child care proceedings but has been broadened to include advice to all solicitors called upon to attend local authority meetings to progress the care planning of children's cases.

This practice note focuses on the role and duties of solicitors in attendance at local authority Children Act meetings as this is considered appropriate bearing in mind the Law Society's role as the professional organisation representing solicitors.

It is assumed that any solicitor following the guidance will already be aware of Good Practice in Child Care Cases updated and reissued by the Law Society in 2011, which is available on the Law Society Bookshop website.

This practice note does not have the same status as the SRA's Code of Conduct. Nevertheless, it should be followed unless very good reasons exist for not doing so.

1.3 Professional conduct

The Law Society's guidance has been sought on the application to Local Authority Children Act meetings of Outcomes 11.01 and 11.04 of Chapter 11: Relations with Third Parties, in the Solicitors Regulation Authority Code of Conduct 2011.

Outcome 11.01 : 'you do not take unfair advantage of third parties in either your professional or personal capacity'

It has been suggested that a l ocal authority solicitor attending a Local Authority Children Act meeting may fall foul of this rule if they were to listen to the discussion at the meeting in which parents are participating and then use the knowledge of that discussion to advantage in the cross-examination of a parent in any subsequent court proceedings.

It must be reiterated that the purpose of a Local Authority Children Act meeting is to share information about the care of the child, the child's need for protection and to plan for future care.

It is outside the remit of the meeting to consider allegations of abuse against the parents except in so far as this may be relevant in formulating a care plan to meet the identified needs of the child.

In other words it is important to ensure that inappropriate investigations of abuse are avoided. If you are representing the local authority, you are responsible for advising the meeting to keep within its remit. It is then the responsibility of the chair of the meeting to ensure that the meeting does keep within its remit.

If it appears to you as the l ocal authority solicitor that, at a meeting where parents are in attendance without their solicitor, there is a need to discuss information which may be in conflict with the parents' interests, you should consider advising the meeting that they must withdraw while this information is discussed.

It should not be assumed that there will always be a conflict of interest between parents and child, or parents and the local authority.

The concept of working in partnership should be pursued until the contrary is indicated. Equally, it should not be assumed that withdrawal from a local authority Children Act meeting should be routine – it should only occur in rare circumstances and in cases where prior warning of potentially damaging admissions is given and in order to prevent criticism at a later stage.

Outcome 11.04 : 'ensuring that you do not communicate with another party when you are aware that the other party has retained a lawyer in a matter, except:
- (a) to request the name and address of the other party's lawyer; or
- (b) the other party's lawyer consents to you communicating with the client; or
- (c) where there are exceptional circumstances'

It has been suggested that if parents have retained a solicitor who is not present at the local authority Children Act meeting, then the local authority solicitor can only attend with the parents' solicitor's consent. It is the Law Society's view that this Outcome is not relevant in the context of local authority Children Act meetings and therefore should not be used to determine who should and should not attend such meetings.

The role of the local authority solicitor has already been set out in this practice note. Giving legal advice to a local authority Children Act meeting should not be construed as 'communicating with another party' when parents are participants at the meeting.

It is good practice to invite parents' solicitors, or their representatives, to accompany parents to local authority Children Act meetings.

However, even if the parents' solicitor is not invited to attend (or they are unable to attend for other reasons), there should be no question of them objecting to the attendance of the local authority solicitor in order for the local authority solicitor to advise the meeting.

1.4 Status

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, contact the Law Society's Practice Advice Service: www.lawsociety.org.uk/practiceadvice .

1.5 Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should

Outside of a regulatory context, good practice for most situations in the Law Society's view.
In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

2 Local authority Children Act meetings

Local authority Children Act meetings are a key part of the local authority's statutory arrangements to progress care planning in children's cases.

Detailed guidance on these arrangements is contained in the Children Act 1989 Guidance and Regulations volumes 1 to 5. Volume 1 was revised and reissued on 1 April 2008 and volumes 2 to 5 were revised and reissued on 1 April 2011.

These together with additional related volumes of guidance and regulations can be found on the Department for Education website:

These volumes of guidance are issued under section 7 of the L ocal Authority Social Services Act 1970 which require local authorities in exercising their social services functions, to act under the general guidance of the secretary of state.

Local authorities should comply with statutory guidance when exercising these functions, unless local circumstances indicate exceptional reasons that justify a variation.

If you attend local authority Children Act meetings or deal with work that brings you into contact with child protection investigations, you should familiarise themselves with the localauthority's own procedures.

The Children Act 1989 and its accompanying guidance and regulations place strong emphasis on the need for the local authority to work in partnership with family members, particularly parents and children, and to encourage and facilitate the involvement of parents and children in all stages of planning and decision-making affecting children.

While the Children Act 1989 Guidance and Regulations stresses the need to ensure that the welfare of the child is the overriding factor, it also emphasises the importance of full participation of children and parents at all stages of the care planning process.

Guidance on this issue is also given in chapter 2 of The Challenge of Partnership in Child Protection: Practice Guide produced by the Department for Education and guidance is given on the exceptional circumstances in which children or parents may be excluded from Child Protection Conferences in particular.

It is for each local authority's local Safeguarding Children Board to agree a policy on the involvement of children and parents in Child Protection Conferences, and for the conference chair to decide the implementation of that policy in each individual case.

It may not always be possible to involve all family members at all times in the conference, for example, if one parent is the alleged abuser or if there is a high level of conflict between family members. If the Conference Chair needs to exclude either or both parents from part or all of the conference then in all such cases, reasons for exclusion must be given.

If you are acting for a child, you should ensure that the child's views are given to the Local authority Children Act meeting by the children's guardian, or by you yourself if the children's guardian cannot attend or it otherwise appropriate to do so.

The Children Law Sub Committee therefore believes that professionals have a duty to learn, through appropriate training if necessary, how to deal with local authority Children Act meetings with full participation of parents and children.

Information from research and from practitioners (see the reading list on page 6) leads to the conclusion that the maximum involvement of parents and older children, and openness and honesty create the conditions for partnership between professionals and family members which is most conducive to the long-term welfare of the child.

This guidance therefore assumes the attendances and participation of parents and older children during the whole of local authority Children Act meetings.

3. The role of lawyers in local authority Children Act meetings

3.1 If you are representing the local authority

If you are employed by a local authority, you will be called upon to advise as well as to act on behalf of their local authority 'client' in care proceedings. One particular function will be to advise the authority on whether the criteria for initiating proceedings under the Children Act 1989 have been met.

The local authority solicitor also has a particular function in relation to Child Protection Conferences. Paragraph 5.84 of Working Together to Safeguard Children, a guide to inter-agency working to safeguard and promote the welfare of children (2010) states that 'those who have a relevant contribution to make may include local authority legal services (child care)'.

In this context, your attendance may be necessary to offer expert advice to the Conference on any legal issues which may arise, but not to be a full participant in the Conference.

You should not address substantive questions about the matter under consideration directly to parents for two reasons:

firstly, this could well mean asking questions of another solicitor's client without his or her permission, and
secondly, you should not ask questions of a lay participant at a conference without his or her solicitor's consent which should more appropriately be asked in court proceedings.

Questions directed to other participants in the Child Protection Conference will normally be limited to prompting an expansion or clarification of information or evidence already given (see 1.3 Professional conduct).

Further, legal advice to the local authority on their agency role in care planning and on initiating or pursuing court proceedings should be given outside the Child Protection Conference.

However, if the conference is considering making a recommendation to the local authority that care proceedings or other court action should be taken, you may give a view to the conference as to whether the evidence would support such a step being taken.

You may assist in the decision as to whether the criteria are fulfilled for making a child the subject of a child protection plan.

You may also suggest to the Local Authority that it consider initiating or pursuing court proceedings. However, any decision actually to initiate or pursue court proceedings should be made by the local authority outside the Child Protection Conference.

Care planning is essential to meet the child's future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to bring proceedings to court or alternatively to narrow the issues within care proceedings so as to avoid non-purposeful delay which is in itself harmful to the welfare of the child.

3.2 If you are representing other parties

In order to encourage the participation of children and parents or other relatives,Working Together suggests they may feel more confident if accompanied by an advocate, friend or supporter to a Child Protection Conference (Para 5.86).

That person may be you as a solicitor, but, if so, it will be incumbent on the chair to clarify tyour role at the conference, which may vary according to local practices and the circumstances of the case.

However, representatives accompanying parents or children to Child Protection Conferences and to other local authority Children Act meetings should be able to assist their clients to express their views and participate in the meeting, and should (with the chair's permission) be allowed to speak on their behalf.

As it is not routine for solicitors for parents or family members to attend child protection conferences, it is sensible for any solicitors intending to attend such a conference to notify the chairperson in advance that he or she will attend with the client.

Currently the Legal Service Commission's (LSC) guidance on attendance at child protection conferences states is given in the LSC's Funding Code: Decision Making Guidance, Chapter 20 (Children and Family) (PDF) at paragraph 20.11, where it states:

'Advice can be provided to clients both before and after a child protection conference. There will usually be more appropriate support to clients attending child protection conferences than attendance at those conferences where providers may only be able to take a limited note. However, there may be some exceptional circumstances where the attendance of the provider is necessary, not merely to provide support for the client but to enable proper legal advice to be given at the conference itself.'

The parents (and any others with parental responsibility for the child), on receipt of the local authority's written notification of its intention to apply for a care or supervision order, (known as the 'Letter Before Proceedings' are entitled to non-means tested Community Legal Services funding. The level of service is called Family Help (Lower) and is also referred to as at 'Level 2' advice.

This covers liaison and negotiations with the local authority, including attendance at a Pre-proceedings Meeting. Once care proceedings have been issued parents and children will be entitled to Community Legal Services funding. The relevant level of service is called Legal Representation and is also referred to as at 'Level 3' funding, which is also available on a non-means tested basis.

Care planning is essential to meet the child's future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to bring proceedings to court or alternatively to narrow the issues within care proceedings so as to avoid delay which is in itself harmful to the welfare of the child.

3.3 If you are representing the child

It can be both helpful and important for you,, or a representative of your firm to attend any local authority Children Act meeting, either to accompany the child or to attend on the child's behalf where the child is too young or unwilling to attend themself.

However, the decision as to who should attend, either with or on behalf of the child, will vary according to the circumstances of the case.

In advance of any local authority Children Act meeting, you should discuss with the Children's Guardian, and with the child if appropriate, , who should attend the meeting.

You should also take instructions on the most appropriate arrangements for the child's future care and protection, in order to discuss these proposals and put them forward, on behalf of the child, at the meeting.

If you cannot attend in person, but have agreed to send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, is fully informed of the circumstances of the case, and is able to assist the child or speak on his/her behalf.

3.4 If you are representing the parents or persons with parental responsibility

It is good practice for local authorities to invite you, or a representative of your firm, to accompany parents as a supporter to local authority Children Act meetings and that local authorities should be encouraged to adopt this approach.

This will facilitate a full exchange of information and also avoid the stressful situation of parents having to face a meeting of professionals without any professional assistance themselves.

If you cannot attend in person but instead send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, and is fully informed of the circumstances of the case.

It is in any event, important to advise parents of the importance and benefits of their attendance at Local Authority Children Act meetings and to assist in preparing them for the meeting.

You should first discuss with the client who, if anyone, would be the most appropriate person to accompany them to the meeting (if it is appropriate and possible for someone to attend), and consider what the person's role should be, subject to the agreement of the chair of the meeting.

If court proceedings are a possible outcome or these are already in existence, you should discuss with the client(s) the implications of giving information to the meeting, particularly if there is a possibility that they may later be cross-examined in court.

Where parents are unable to attend the meeting, you should encourage and assist the parents to prepare a statement to be read out at the meeting.

When you attend local authority Children Act meetings your role at the meeting should be outlined by the chair. In appropriate cases this might include clarifying whether or not you can ask questions or raise points on your clients' behalf.

It is frequently the case that the chair of the meeting will meet parents (and their solicitors) before the meeting starts. Any queries over your role can therefore be dealt with at that stage.

There may be circumstances when it may be inappropriate for both child and parents to be present at the meeting at the same time. It will be for the chair to work out procedures to enable all parties to participate to the fullest and fairest extent.

However, where a young person decides to attend a meeting without being accompanied by a representative, but does not wish to disclose information in front of his or her parents, then it will usually be appropriate for the parents and their representative to withdraw from the meeting to enable the young person to participate.

In some cases, for example, where parents are separated, issues of conflict, competing interests and requests for confidentiality do arise as between parents or relatives attending at local authority Children Act meetings.

It may therefore not be appropriate for those persons and their solicitors to be present together during the meeting. Again, it will be for the chair of the meeting to determine appropriate procedures to enable the fullest and fairest possible participation of those concerned.

4 Exclusion/withdrawal of parents and/or children

Working Together states that 'the decision to exclude a parent or caregiver from the child protection conference rests with the chair of the conference, acting within local Safeguarding Children Board procedures.

If the parents are excluded, or are unable or unwilling to attend a child protection conference, they should be enabled to communicate their views to the conference by another means.

The Challenge Partnership in Child Protection states that if a decision is taken to exclude or limit attendance an explanation for this course of action should be given by the conference chair.

It is suggested in The Challenge of Partnership in Child Protection that exclusion may be necessary if the individual concerned is so disruptive as to prevent the business at the meeting being concluded.

Partial withdrawal may be necessary if conflicts of interest exist between various participants or if confidential information needs to be discussed and this may include the giving of legal advice to the local authority .

5 Further products and support

Further information or advice on individual cases can be obtained from the SRA's Professional Ethics Team or from the Law Society's Practice Advice Service.

5.1 Practice Advice Service

The Law Society provides support for solicitors on a wide range of areas of practice. The Practice Advice Service can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays, or by email at practiceadvice@lawsociety.org.uk

5.2 Professional Ethics Helpline

The Solicitors Regulation Authority's Professional Ethics helpline provides advice on conduct issues. Contact them on 0870 606 2577 or at http://www.sra.org.uk/contact-us/.

5.3 Acknowledgements

The Law Society acknowledges the Children's Law Sub Committee for their help with this practice note.

5.4 Reading list

Department of Health 1995 The Challenge of Partnership in Child Protection: Practice Guide. London. HMSO.
Department of Health 2001 The Children Act Now Messages from Research. London. The Stationery Office.
Department for Children, Schools and Families 2008 The Children Act 1989 Guidance and Regulations volume 1 Court Orders. London The Stationery Office.
And volume 2 Care Planning, Placement and Case Review. 2010.
Brophy J 2006 Research review: Child care proceedings under the Children at 1989. Department for Constitutional Affairs.
Masson J Pearce J Bader K 2008 Care profiling study Ministry of Justice.
Department for Children, Schools and Families 2010 Working Together to Safeguard Children. A guide to inter-agency working to safeguard and promote the welfare of children HM Government.
The Law Society 2010 Good Practice in Child Care Cases. A Guide for Solicitors in Public Law Children Act Proceedings.
Fahlberg V 1994 A Child's Journey through Placement London. BAAF.
Gorin S 2004 Understanding what children say. Children's experiences of domestic violence, parental substance misuse and parental mental health problems. London. National Children's Bureau.
Howe D 2005 Child abuse and Neglect. Attachment, Development and Intervention. London. Palgrave Macmillan.
Mudaly N, Goddard, C 2006 The Truth is Longer Than a Lie Children's Experiences of Abuse and professional Interventions. London. Jessica Kingsley.
Sinclair I, Baker C, Lee J, Gibbs I 2007 The Pursuit of Permanence. A Study of the English Care System. London. Jessica Kingsley.
Brammer, A 2010 Social Work Law 3rd edn. Harlow. Pearson.
Biehal N, Ellison S, Baker C, Sinclair I 2010 Belonging and permanence. Outcomes in long-term foster care and adoption. London. BAAF.

HHJ Tyzack - the worst Judge in the UK - NOW RETIRED!!! OH YES HES GONE!!

Tuesday 15 January 2013