PRACTICE DIRECTION 12A – PUBLIC LAW PROCEEDINGS GUIDE TO CASE MANAGEMENT: APRIL 2010
PRACTICE DIRECTION 12A – PUBLIC LAW PROCEEDINGS GUIDE TO CASE MANAGEMENT: APRIL 2010
This Practice Direction applies to care and supervision proceedings. In so far as practicable, it is to be applied to all other Public Law Proceedings.
This Practice Direction replaces Practice Direction Guide to Case Management in Public Law Proceedings dated April 2008.
This Practice Direction will come into effect on 6th April 2010.The new form of application for a care or supervision order (Form C110) only applies to proceedings commenced on or after 6th April 2010.Subject to this it is intended that this Practice Direction should apply in so far as practicable to applications made and not disposed of before 6th April 2010. In relation to these applications –
(1) the Practice Direction Guide to Case Management in Public Law Proceedings dated April 2008 applies where it is not practicable to apply this Practice Direction; and
(2) the court may give directions relating to the application of this Practice Direction or the April 2008 Practice Direction.
This is subject to the overriding objective below and to the proviso that such a direction will neither cause further delay nor involve repetition of steps already taken or decisions already made in the case.
This Practice Direction is to be read with the rules and is subject to them.
A Glossary of terms is at paragraph 26.
The overriding objective
This Practice Direction has the overriding objective of enabling the court to deal with cases justly, having regard to the welfare issues involved.
Dealing with a case justly includes, so far as is practicable –
(1) ensuring that it is dealt with expeditiously and fairly;
(2) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(3) ensuring that the parties are on an equal footing;
(4) saving expense; and
(5) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Application by the court of the overriding objective
Duty of the parties
The parties are required to help the court further the overriding objective.
Court case management
THE MAIN PRINCIPLES
The main principles underlying court case management and the means of the court furthering the overriding objective in Public Law Proceedings are –
(1) Timetable for the Child: each case will have a timetable for the proceedings set by the court in accordance with the Timetable for the Child;
(2) judicial continuity: each case will be allocated to one or not more than two case management judges (in the case of magistrates’ courts, case managers), who will be responsible for every case management stage in the proceedings through to the Final Hearing and, in relation to the High Court or county court, one of whom may be – and where possible should be – the judge who will conduct the Final Hearing;
(3) main case management tools: each case will be managed by the court by using the appropriate main case management tools;
(4) active case management: each case will be actively case managed by the court with a view at all times to furthering the overriding objective;
(5) consistency: each case will, so far as compatible with the overriding objective, be managed in a consistent way and using the standardised steps provided for in this Direction.
THE MAIN CASE MANAGEMENT TOOLS
The Timetable for the Child
The ‘Timetable for the Child’ is defined by the rules as the timetable set by the court in accordance with its duties under section 1 and 32 of the 1989 Act and shall –
(1) take into account dates of the significant steps in the life of the child who is the subject of the proceedings; and
(2) be appropriate for that child.
The court will set the timetable for the proceedings in accordance with the Timetable for the Child and review this Timetable regularly. Where adjustments are made to the Timetable for the Child, the timetable for the proceedings will have to be reviewed. The Timetable for the Child is to be considered at every stage of the proceedings and whenever the court is asked to make directions whether at a hearing or otherwise.
The steps in the child’s life which are to be taken into account by the court when setting the Timetable for the Child include not only legal steps but also social, care, health and education steps.
Examples of the dates the court will record and take into account when setting the Timetable for the Child are the dates of –
(1) any formal review by the Local Authority of the case of a looked after child (within the meaning of section 22(1) of the 1989 Act);
(2) the child taking up a place at a new school;
(3) any review by the Local Authority of any statement of the child’s special educational needs;
(4) any assessment by a paediatrician or other specialist;
(5) the outcome of any review of Local Authority plans for the child, for example, any plans for permanence through adoption, Special Guardianship or placement with parents or relatives;
(6) any change or proposed change of the child’s placement.
Due regard should be paid to the Timetable for the Child to ensure that the court remains child-focused throughout the progress of Public Law Proceedings and that any procedural steps proposed under the Public Law Outline are considered in the context of significant events in the child’s life.
The applicant is required to provide the information needed about the significant steps in the child's life in the Application Form and to update this information regularly taking into account information received from others involved in the chil’'s life such as other parties, members of the child’s family, the person who is caring for the child, the children's guardian and the child’s key social worker.
Before setting the timetable for the proceedings the factors which the court will consider will include the need to give effect to the overriding objective and the timescales in the Public Law Outline by which the steps in the Outline are to be taken. Where possible, the timetable for the proceedings should be in line with those timescales. However, there will be cases where the significant steps in the child’s life demand that the steps in the proceedings be taken at times which are outside the timescales set out in the Outline. In those cases the timetable for the proceedings may not adhere to one or more of the timescales set out in the Outline.
Where more than one child is the subject of the proceedings, the court should consider and may set a Timetable for the Child for each child. The children may not all have the same Timetable, and the court will consider the appropriate progress of the proceedings in relation to each child.
Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should where practicable take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the Timetable for the Child.
Case Management Documentation
Case Management Documentation includes the –
(1) Application Form and Annex Documents;
(2) Case Analysis and Recommendations provided by Cafcass or CAFCASS CYMRU;
(3) Local Authority Case Summary;
(4) Other Parties’ Case Summaries.
The court will encourage the use of the Case Management Documentation which is not prescribed by the rules.
The Case Management Record
The court’s filing system for the case will be known as the Case Management Record and will include the following main documents –
(1) the Case Management Documentation;
Parties or their legal representatives will be expected to retain their own record containing copies of the documents on the court’s Case Management Record.
The First Appointment
The purpose of the First Appointment is to confirm allocation of the case and give initial case management directions.
The Case Management Order
The Case Management Order is an order which will be made by the court at the conclusion of the Case Management Conference, the Issues Resolution Hearing and any other case management hearing. It is designed to achieve active case management as defined in paragraph 3.20 below. The parties are required to prepare and submit to the court a draft of this order in accordance with paragraphs 5.8 to 5.10 below. The order will include such of the provisions referred to in the Glossary at paragraph 26(12) as are appropriate to the proceedings.
Advocates ’ Meeting/ discussion
The court will consider directing advocates to have discussions before the Case Management Conference and the Issues Resolution Hearing. Advocates may well find that the best way to have these discussions is to meet. Such discussion is intended to facilitate agreement and to narrow the issues for the court to consider. Advocates and litigants in person may take part in the Advocates’ Meeting or discussions.
The Case Management Conference
In each case there will be a Case Management Conference to enable the case management judge or case manager, with the co-operation of the parties, actively to manage the case and, at the earliest practicable opportunity to –
(1) identify the relevant and key issues; and
(2) give full case management directions including confirming the Timetable for the Child.
The Issues Resolution Hearing
ACTIVE CASE MANAGEMENT
The court must further the overriding objective by actively managing cases.
Active case management includes –
(2) identifying the appropriate court to conduct the proceedings and transferring the proceedings as early as possible to that court;
(3) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(5) identifying all facts and matters that are in issue at the earliest stage in the proceedings and at each hearing;
(6) deciding promptly which issues need full investigation and hearing and which do not and whether a fact finding hearing is required;
(7) deciding the order in which issues are to be resolved;
(8) identifying at an early stage who should be a party to the proceedings;
(9) considering whether the likely benefits of taking a particular step justify any delay which will result and the cost of taking it;
(10) directing discussion between advocates and litigants in person before the Case Management Conference and Issues Resolution Hearing;
(11) requiring the use of the Case Management Order and directing advocates and litigants in person to prepare or adjust the draft of this Order where appropriate;
(12) standardising, simplifying and regulating –
(a) the use of Case Management Documentation and forms;
(b) the court’s orders and directions;
(13) controlling –
(a) the use and cost of experts;
(b) the nature and extent of the documents which are to be disclosed to the parties and presented to the court;
(c) whether and, if so, in what manner the documents disclosed are to be presented to the court;
(d) the progress of the case;
(14) where it is demonstrated to be in the interests of the child, encouraging the parties to use an alternative dispute resolution procedure if the court considers such a procedure to be appropriate and facilitating the use of such procedure;
(15) helping the parties to reach agreement in relation to the whole or part of the case;
(16) fixing the dates for all appointments and hearings;
(17) dealing with as many aspects of the case as it can on the same occasion;
(18) where possible dealing with additional issues which may arise from time to time in the case without requiring the parties to attend at court;
(19) making use of technology; and
(20) giving directions to ensure that the case proceeds quickly and efficiently.
The expectations are that proceedings should be –
(1) conducted using the Case Management Tools and Case Management Documentation referred to in this Practice Direction in accordance with the Public Law Outline;
(2) finally determined within the timetable fixed by the court in accordance with the Timetable for the Child – the timescales in the Public Law Outline being adhered to and being taken as the maximum permissible time for the taking of the step referred to in the Outline unless the Timetable for the Child demands otherwise.
However, there may be cases where the court considers that the child’s welfare requires a different approach from the one contained in the Public Law Outline. In those cases, the court will –
(1) determine the appropriate case management directions and timetable; and
(2) record on the face of the order the reasons for departing from the approach in the Public Law Outline.
How the parties should help court case management
MAIN METHODS OF HELPING
Good case preparation
The applicant should prepare the case before proceedings are issued. In care and supervision proceedings the Local Authority should use the Pre-proceedings checklist.
The Timetable for the Child
The applicant must state in the Application Form all information concerning significant steps in the child’s life that are likely to take place during the proceedings. The applicant is to be responsible for updating this information regularly and giving it to the court. The applicant will need to obtain information about these significant steps and any variations and additions to them from others involved in the child’s life such as other parties, members of the child’s family, the person who is caring for the child, the children’s guardian and the child’s key social worker. When the other persons involved in the child’s life become aware of a significant step in the child's life or a variation of an existing one, that information should be given to the applicant as soon as possible.
The information about the significant steps in the child’s life will enable the court to set the Timetable for the Child and to review that Timetable in the light of new information. The Timetable for the Child will be included or referred to in the draft of a Case Management Order, the Case Management Order, Standard Directions on Issue and on First Appointment and the directions given at the Case Management Conference and Issues Resolution Hearing.
Case Management Documentation
The parties and their representatives should co-operate with the court in case management, including the fixing of timetables to avoid unacceptable delay, and in the crystallisation and resolution of the issues on which the case turns.
The parties will –
(1) monitor compliance with the court's directions; and
(2) tell the court or court officer about any failure to comply with a direction of the court or any other delay in the proceedings.
The Case Management Record
The parties are expected to retain a record containing copies of the documents on the court’s Case Management Record.
Drafting the Case Management Order
Parties should start to consider the content of the draft of the Case Management Order at the earliest opportunity either before or in the course of completing applications to the court or the response to the application. They should in any event consider the drafting of a Case Management Order after the First Appointment.
Only one draft of the Case Management Order should be filed with the court for each of the Case Management Conference and the Issues Resolution Hearing. It is the responsibility of the advocate for the applicant, which in care and supervision proceedings will ordinarily be the Local Authority, to prepare those drafts and be responsible for obtaining comments from the advocates and the parties.
There should be ongoing consideration of the Case Management Orders throughout the proceedings. The Case Management Orders should serve as an aide memoire to everyone involved in the proceedings of –
(1) the Timetable for the Child;
(2) the case management decisions;
(3) the identified issues.
Findings of Fact Hearings
In a case where the court decides that a fact finding hearing is necessary, the starting point is that the proceedings leading to that hearing are to be managed in accordance with the case management steps in this Practice Direction.
Ethnicity, Language, Religion and Culture
At each case management stage of the proceedings, particularly at the First Appointment and Case Management Conference, the court will consider giving directions regarding the obtaining of evidence about the ethnicity, language, religion and culture of the child and other significant persons involved in the proceedings. The court will subsequently consider the implications of this evidence for the child in the context of the issues in the case.
Adults who may be protected parties
The applicant must give details in the Application Form of any referral to or assessment by the local authority’s Adult Learning Disability team (or its equivalent).The Local Authority should tell the court about other referrals or assessments if known such as a referral to Community Mental Health.
The court will investigate as soon as possible any issue as to whether an adult party or intended party to the proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. A representative (a litigation friend, next friend or guardian ad litem) is needed to conduct the proceedings on behalf of an adult who lacks capacity to do so (‘a protected party’). The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for a protected party as guardian ad litem or litigation friend if there is no other person suitable and willing to act.
Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult's role within the proceedings.
Where the adult is a protected party, that party’s representative should be involved in any instruction of an expert, including the instruction of an expert to assess whether the adult, although a protected party, is competent to give evidence. The instruction of an expert is a significant step in the proceedings. The representative will wish to consider (and ask the expert to consider), if the protected party is competent to give evidence, their best interests in this regard. The representative may wish to seek advice about ‘special measures’. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.
If at any time during the proceedings, there is reason to believe that a party may lack capacity to conduct the proceedings, then the court must be notified and directions sought to ensure that this issue is investigated without delay.
Child likely to lack capacity to conduct the proceedings when aged 18
Where it appears that a child is –
(1) a party to the proceedings and not the subject of them;
(2) nearing age 18; and
(3) considered likely to lack capacity to conduct the proceedings when 18, the court will consider giving directions relating to the investigation of a child’s capacity in this respect.
Outline of the process and how to use the Main Case Management Tool
The Public Law Outline set out in the Table below contains an outline of –
(1) the order of the different stages of the process;
(2) the purposes of the main case management hearings and matters to be considered at them;
(3) the latest timescales within which the main stages of the process should take place.
Public Law Outline
Annex Documents (the documents specified in the Annex to the Application Form to be attached to that form where available):
Other Checklist Documents which already exist on LA's files which are to be disclosed in the event of proceedings normally before the day of the FA:
|Stage 1 – Issue and the First Appointment|
|One day 1 and by day 3||By day 6|
|Objectives: To ensure compliance with pre-proceedings checklist; to allocate proceedings; to obtain the information necessary for initial case management at the FA||Objectives: To confirm allocation; to give initial case management directions|
On Day 1:
|Stage 2 – Case Management Conference|
|No later than 2 days before CMC||No later than day 45|
|Objectives: To prepare a draft of the Case Management Order; to identify experts and draft questions for them||Objectives: To identify issue(s); to give full case management directions|
|Stage 3 – Issues Resolution Hearing|
|Between 2 and 7 days before the IRH||Between 16 & 25 weeks|
|Objective: To prepare or update the draft of the Case Management Order||Objectives: To resolve and narrow issue(s); to identify any remaining key issues|
|Hearing set in accordance with the Timetable for the Child|
|Objective: To prepare or update the draft of the Case Management Order|
Starting the proceedings
The Pre-proceedings Checklist is to be used by the applicant to help prepare for the start of the proceedings.
The Pre-proceedings Checklist contains the documents which are specified in the Annex to the Application Form. The rules require those documents which are known as the ‘Annex Documents’ to be filed with the Application Form where available. The Annex Documents are –
(1) Social Work Chronology;
(2) Initial Social Work Statement;
(3) Initial and Core Assessments;
(4) Letters before Proceedings;
(5) Schedule of Proposed Findings; and
(6) Care Plan
In addition, the Pre-proceedings Checklist contains examples of documents other than the Annex Documents which will normally be on the Local Authority file at the start of proceedings so that they can be served on parties in accordance with the Public Law Outline. These documents are known as the ‘Other Checklist Documents’ and are not to be filed with the court at the start of the proceedings but are to be disclosed to the parties normally before the day of the First Appointment or in accordance with the court's directions and to be filed with the court only as directed by the court.
Compliance with Pre-proceedings Checklist
It is recognised that in some cases the circumstances are such that the safety and welfare of the child may be jeopardised if the start of proceedings is delayed until all of the documents appropriate to the case and referred to in the Pre-proceedings Checklist are available. The safety and welfare of the child should never be put in jeopardy because of lack of documentation. (Nothing in this Practice Direction affects an application for an emergency protection order under section 44 of the 1989 Act).
The court recognises that the preparation may need to be varied to suit the circumstances of the case. In cases where any of the Annex Documents required to be attached to the Application Form are not available at the time of issue of the application, the court will consider making directions on issue about when any missing documentation is to be filed. The expectation is that there will be a good reason why one or more of the documents are not available. Further directions relating to any missing documentation are likely to be made at the First Appointment. The court also recognises that some documents on the Pre-proceedings Checklist may not exist and may never exist, for example, the Section 37 report, and that in urgent proceedings no Letter Before Proceedings may have been sent.
What the court will do at the issue of proceedings
The objectives at this stage are for the court –
(1) to identify the Timetable for the Child;
(2) in care and supervision proceedings, to ensure compliance with the Pre-proceedings Checklist;
(3) to allocate proceedings;
(4) to obtain the information necessary to enable initial case management at the First Appointment.
The steps which the court will take once proceedings have been issued include those set out in paragraphs 12.3 to 12.5 below.
By reference to the Allocation Order, the court will consider allocation of the case and transfer to the appropriate level of court those cases which are obviously suitable for immediate transfer.
Other steps to be taken by the court
The court will –
(1) consider giving directions –
(a) appropriate to the case including Standard Directions On Issue;
(b) in care and supervision proceedings, relating to the preparation, filing and service of any missing Annex Documents and what Other Checklist Documents are to be filed and by when;
(c) relating to the representation of any protected party or any child who is a party to, but is not the subject of, the proceedings by a guardian ad litem or litigation friend, including the Official Solicitor where appropriate;
(2) appoint a children’s guardian in specified proceedings (in relation to care and supervision proceedings the court will expect that Cafcass or CAFCASS CYMRU will have received notice from the Local Authority that proceedings were going to be started);
(3) appoint a solicitor for the child under section 41(3) of the 1989 Act where appropriate;
(4) request the children’s guardian or if appropriate another officer of the service or Welsh family proceedings officer to prepare a Case Analysis and Recommendations for the First Appointment;
(5) make arrangements for a contested hearing, if necessary.
(A suggested form for the drafting of Standard Directions on Issue is Form PLO 8 which is available from HMCS)
Setting a date for the First Appointment
The court will record the Timetable for the Child and set a date for the First Appointment normally no later than 6 days from the date of issue of the proceedings and in any event in line with the Timetable for the Child.
Case managers in the magistrates’ courts
In the magistrates’ courts, the justices’ clerk may nominate one but not more than two case managers.
The First Appointment
The First Appointment is the first hearing in the proceedings. The main objectives of the First Appointment are to –
(1) confirm allocation; and
(2) give initial case management directions having regard to the Public Law Outline.
The steps which the court will take at the First Appointment include those set out in paragraphs 13.3 to 13.6 below.
Steps to be taken by the court
(1) confirm the Timetable for the Child;
(2) make arrangements for any contested interim hearing such as an application for an interim care order;
(3) confirm in writing the allocation of the case or, if appropriate, transfer the case;
(4) request the children’s guardian or if appropriate another officer of the service or Welsh family proceedings officer to prepare a Case Analysis and Recommendations for the Case Management Conference or Issues Resolution Hearing;
(5) scrutinise the Care Plan;
(6) consider giving directions relating to –
(a) those matters in the Public Law Outline which remain to be considered including preparation, filing and service of any missing Annex Documents and what Other Checklist documents are to be filed and by when;
(b) the joining of a person who would not otherwise be a respondent under the rules as a party to the proceedings;
(c) where any person to be joined as a party may be a protected party, an investigation of that person’s capacity to conduct the proceedings and the representation of that person by a guardian ad litem or litigation friend, including the Official Solicitor where appropriate;
(d) the identification of family and friends as proposed carers and any overseas, immigration, jurisdiction and paternity issues;
(e) any other documents to be filed with the court;
(f) evidence to be obtained as to whether a parent who is a protected party is competent to make a statement.
(A suggested form for the drafting of Standard Directions on First Appointment is Form PLO 9 which is available from HMCS)
Early Final Hearing
Cases which are suitable for an early Final Hearing are those cases where all the evidence necessary to determine issues of fact and welfare is immediately or shortly available to be filed. Those cases are likely to include cases where the child has no parents, guardians, relatives who want to care for the child, or other carers. The court will –
(1) identify at the First Appointment whether the case is one which is suitable for an early Final Hearing; and
(2) set a date for that Final Hearing.
Setting a date for the Case Management Conference
The court will set a date for the Case Management Conference normally no later than 45 days from the date of issue of the proceedings and in any event in line with the Timetable for the Child.
Advocate’ Meeting/discussion and the drafting of the Case Management Order
The court will consider directing a discussion between the parties’ advocates and any litigant in person and the preparation of a draft of the Case Management Order as outlined below.
A party who wishes to instruct an expert should comply with the Experts Practice Direction. Where the parties are agreed on any matter relating to experts or expert evidence, the draft agreement must be submitted for the court's approval as early as possible in the proceedings.
Advocates' Meeting/discussion and the drafting of the Case Management Order
The main objective of the Advocates’ Meeting or discussion is to prepare a draft of the Case Management Order for approval by the court.
Where there is a litigant in person the court will consider the most effective way in which that person can be involved in the advocates discussions and give directions as appropriate including directions relating to the part to be played by any McKenzie Friend.
Timing of the discussions is of the utmost importance. Discussions of matters ‘outside the court room door’, which could have taken place at an earlier time, are to be avoided. Discussions are to take place no later than 2 days before the Case Management Conference or the Issues Resolution Hearing whichever is appropriate. The discussions may take place earlier than 2 days before those hearings, for example, up to 7 days before them.
Following discussion the advocates should prepare or adjust the draft of the Case Management Order. In practice the intention is that the advocate for the applicant, which in care and supervision proceedings will ordinarily be the Local Authority, should take the lead in preparing and adjusting the draft of the Case Management Order following discussion with the other advocates. The aim is for the advocates to agree a draft of the Case Management Order which is to be submitted for the approval of the court.
Where it is not possible for the advocates to agree the terms of the draft of the Case Management Order, the advocates should specify on the draft, or on a separate document if more practicable –
(1) those provisions on which they agree; and
(2) those provisions on which they disagree.
Unless the court directs otherwise, the draft of the Case Management Order must be filed with the court no later than 11am on the day before the Case Management Conference or the Issues Resolution Hearing whichever may be appropriate.
At the Advocates’ Meeting or discussion before the Case Management Conference, the advocates should also try to agree the questions to be put to any proposed expert (whether jointly instructed or not) if not previously agreed. Under the Experts Practice Direction the questions on which the proposed expert is to give an opinion are a crucial component of the expert directions which the court is required to consider at the Case Management Conference.
Case Management Conference
The Case Management Conference is the main hearing at which the court manages the case. The main objectives of the Conference are to –
(1) identify key issues; and
(2) give full case management directions.
The steps which the court will take at the Case Management Conference include those steps set out in paragraphs 15.3 to 15.5 below.
Steps to be taken by the court
The court will –
(1) review and confirm the Timetable for the Child;
(2) confirm the allocation or the transfer of the case;
(3) scrutinise the Care Plan;
(4) identify the key issues;
(5) identify the remaining case management issues;
(6) resolve remaining case management issues set out in the draft of the Case Management Order;
(7) identify any special measures such as the need for access for the disabled or provision for vulnerable witnesses;
(8) scrutinise the Case Management Record to check whether directions have been complied with and if not, consider making further directions as appropriate;
(9) where expert evidence is required, check whether the parties have complied with the Experts Practice Direction, in particular the section on preparation for the relevant hearing and consider giving directions as appropriate.
Case Management Order
The court will issue the approved Case Management Order. Parties or their legal representatives will be expected to submit in electronic form the final approved draft of the Case Management Order on the conclusion of, and the same day as, the Case Management Conference.
Setting a date for the Issues Resolution Hearing/Final Hearing
The court will set –
(1) a date for the Issues Resolution Hearing normally at any time between 16 and 25 weeks from the date of issue of the proceedings and in any event in line with the Timetable for the Child; and
(2) if necessary, specify a period within which the Final Hearing of the application is to take place unless a date has already been set.
The Issues Resolution Hearing
The objectives of this hearing are to –
(1) resolve and narrow issues;
(2) identify key remaining issues requiring resolution.
The Issues Resolution Hearing is likely to be the hearing before the Final Hearing. Final case management directions and other preparations for the Final Hearing will be made at this hearing.
Steps to be taken by the court
The court will –
(1) identify the key issues (if any) to be determined;
(2) review and confirm the Timetable for the Child;
(3) consider giving case management directions relating to –
(a) any outstanding matter contained in the draft of the Case Management Order;
(b) the preparation and filing of final evidence including the filing of witness templates;
(c) skeleton arguments;
(d) preparation and filing of bundles in accordance with the Bundles Practice Direction;
(e) any agreement relating to the satisfaction of the threshold criteria under section 31 of the 1989 Act or facts and issues remaining to be determined in relation to it or to any welfare question which arises;
(f) time estimates;
(g) the judicial reading list and likely reading time and judgment writing time;
(4) issue the Case Management Order.
For the avoidance of doubt the purpose of an Issues Resolution Hearing is to –
(1) identify key issues which are not agreed;
(2) examine if those key issues can be agreed; and
(3) where those issues cannot be agreed, examine the most proportionate method of resolving those issues.
The expectation is that the method of resolving the key issues which cannot be agreed will be at a hearing (ordinarily the Final hearing) where there is an opportunity for the relevant oral evidence to be heard and challenged.
Attendance at the Case Management Conference and the Issues Resolution Hearing
An advocate who has conduct of the Final Hearing should ordinarily attend the Case Management Conference and the Issues Resolution Hearing. Where the attendance of this advocate is not possible, then an advocate who is familiar with the issues in the proceedings should attend.
Flexible powers of the court
Attention is drawn to the flexible powers of the court either following the issue of the application in that court, the transfer of the case to that court or at any other stage in the proceedings.
The court may give directions without a hearing including setting a date for the Final Hearing or a period within which the Final Hearing will take place. The steps, which the court will ordinarily take at the various stages of the proceedings provided for in the Public Law Outline, may be taken by the court at another stage in the proceedings if the circumstances of the case merit this approach.
The flexible powers of the court include the ability for the court to cancel or repeat a particular hearing. For example, if the issue on which the case turns can with reasonable practicability be crystallised and resolved by having an early Final Hearing, then in the fulfilment of the overriding objective, such a flexible approach must be taken to secure compliance with section 1(2) of the 1989 Act.
Alternative Dispute Resolution
The court will encourage the parties to use an alternative dispute resolution procedure and facilitate the use of such a procedure where it is –
(1) readily available;
(2) demonstrated to be in the interests of the child; and
(3) reasonably practicable and safe.
At any stage in the proceedings, the parties can ask the court for advice about alternative dispute resolution.
At any stage in the proceedings the court itself will consider whether alternative dispute resolution is appropriate. If so, the court may direct that a hearing or proceedings be adjourned for such specified period as it considers appropriate –
(1) to enable the parties to obtain information and advice about alternative dispute resolution; and
(2) where the parties agree, to enable alternative dispute resolution to take place.
Throughout the proceedings the parties and their representatives should cooperate wherever reasonably practicable to help towards securing the welfare of the child as the paramount consideration.
At each court appearance the court will ask the parties and their legal representatives –
(1) what steps they have taken to achieve co-operation and the extent to which they have been successful;
(2) if appropriate the reason why co-operation could not be achieved; and
(3) the steps needed to resolve any issues necessary to achieve co-operation.
The parties, their advisers and the children’s guardian, are encouraged to try to agree directions for the management of the proceedings.
Variation of case management timetable
It is emphasised that a party or the children’s guardian must apply to the court at the earliest opportunity if they wish to vary by extending the dates set by the court for –
(1) a directions appointment;
(2) a First Appointment;
(3) a Case Management Conference;
(4) an Issues Resolution Hearing;
(5) the Final Hearing;
(6) the period within which the Final Hearing of the application is to take place; or
(7) any Meeting/discussion between advocates or for the filing of the draft of the Case Management Orders.
Who performs the functions of the court
Where this Practice Direction provides for the court to perform case management functions, then except where any rule, practice direction, any other enactment or the Family Proceedings (Allocation to Judiciary) Directions ((2009) 2 FLR 51) provides otherwise, the functions may be performed –
(1) in relation to proceedings in the High Court or in a district registry, by any judge or district judge of that Court including a district judge of the principal registry;
(2) in relation to proceedings in the county court, by any judge or district judge including a district judge of the principal registry when the principal registry is treated as if it were a county court; and
The case management functions to be exercised by a justices’ clerk may be exercised by an assistant justices’ clerk provided that person has been specifically authorised by a justices’ clerk to exercise case management functions. Any reference in this Practice Direction to a justices’ clerk is to be taken to include an assistant justices’ clerk so authorised. The justices’ clerk may in particular appoint one but not more than two assistant justices’ clerks as case managers for each case.
In proceedings in a magistrates’ court, where a party considers that there are likely to be issues arising at a hearing (including the First Appointment, Case Management Conference and Issues Resolution Hearing) which need to be decided by a family proceedings court, rather than a justices’ clerk, then that party should give the court written notice of that need at least 2 days before the hearing.
Family proceedings courts may consider making arrangements to ensure a court constituted in accordance with s 66 of the 1980 Act is available at the same time as Issues Resolution Hearings are being heard by a justices’ clerk. Any delay as a result of the justices’ clerk considering for whatever reason that it is inappropriate for a justices’ clerk to perform a case management function on a particular matter and the justices’ clerk’s referring of that matter to the court should then be minimal.
Where the facilities are available to the court and the parties, the court will consider making full use of technology including electronic information exchange and video or telephone conferencing.
Other Practice Directions
This Practice Direction must be read with the Bundles Practice Direction.
The Bundles Practice Direction is applied to Public Law Proceedings in the High Court and county court with the following adjustments –
(1) add ‘except the-First Appointment; Case Management Conference, and Issues Resolution Hearing referred to in the Practice Direction Public Law Proceedings Guide to Case Management : April 2010 where there are no contested applications being heard at those hearings’ to paragraph 2.2;
(2) the reference to –
(a) the ‘Protocol for Judicial Case Management in Public law Children Act Cases (2003) 2 FLR 719’ in paragraph 6.1;
(b) the ‘Practice Direction: Care Cases: Judicial Continuity and Judicial Case Management’ in paragraph 15; and
(c) ‘the Public Law Protocol’ in paragraph 15, shall be read as if it were a reference to this Practice Direction.
Paragraph 1.9 of the Practice Direction: Experts in Family Proceedings Relating to Children dated April 2008 should be read as if ‘Practice Direction: Guide to Case Management in Public law Proceedings, paragraphs 13.7,14.3 and 25(29)’ were a reference to ‘Practice Direction Public Law Proceedings Guide to Case Management : April 2010, paragraphs14.7,15.3 and 26(33)’.
In this Practice Direction –
(1) ‘the 1989 Act’ means the Children Act 1989;
(2) ‘the 1980 Act’ means the Magistrates’ Courts Act 1980;
(3) ‘advocate’ means a person exercising a right of audience as a representative of, or on behalf of, a party;
(4) ‘Allocation Order’ means any order made by the Lord Chancellor under Part 1 of Schedule 11 to the 1989 Act;
(5) ‘alternative dispute resolution’ means the methods of resolving a dispute other than through the normal court process;
(6) ‘Annex Documents’ means the documents specified in the Annex to the Application Form;
(7) ‘Application Form’ means Form C110 and Annex Documents;
(8) ‘assistant justices’ clerk’ has the meaning assigned to it by section 27(5) of the Courts Act 2003;
(9) ‘the Bundles Practice Direction’ means the Practice Direction Family Proceedings: Court Bundles (Universal Practice to be Applied in all Courts other than Family Proceedings Court) of 27 July 2006
(10) ‘Case Analysis and Recommendations’ means a written or oral outline of the case from the child’s perspective prepared by the children’s guardian or other officer of the service or Welsh family proceedings officer at different stages of the proceedings requested by the court, to provide –
(a) an analysis of the issues that need to be resolved in the case including –
(i) any harm or risk of harm;
(ii) the child's own views;
(iii) the family context including advice relating to ethnicity, language, religion and culture of the child and other significant persons;
(iv) the Local Authority work and proposed care plan;
(v) advice about the court process including the Timetable for the Child; and
(vi) identification of work that remains to be done for the child in the short and longer term; and
(b) recommendations for outcomes, in order to safeguard and promote the best interests of the child in the proceedings;
(12) ‘Case Management Order’ means an order made by the court which identifies the Timetable for the Child, any delay in the proceedings and the reason for such delay and the key issues in the proceedings and includes such of the following provisions as are appropriate to the proceedings –
(a) preliminary information –
(i) the names and dates of birth of the children who are the subject of the proceedings;
(ii) the names and legal representatives of the parties, and whether they attended the hearing;
(iii) any interim orders made in respect of the children and any provisions made for the renewal of those orders;
(b) any recitals that the court considers should be recorded in the order, including those relating to –
(i) any findings made by the court or agreed between the parties;
(ii) any other agreements or undertakings made by the parties;
(c) orders made at the hearing by way of case management relating to –
(i) the joinder of parties;
(ii) the determination of parentage of the children;
(iii) the appointment of a guardian ad litem or litigation friend (including the Official Solicitor where appropriate);
(iv) the transfer of the proceedings to a different court;
(v) the allocation of the proceedings to a case management judge;
(vi) the filing and service of threshold criteria documents;
(vii) the preparation and filing of assessments, including Core Assessments and parenting assessments;
(viii) in accordance with the Experts’ Practice Direction, the preparation and filing of other expert evidence, and experts’ meetings;
(ix) care planning and directions in any application for placement for adoption;
(x) the filing and service of evidence/further evidence on behalf of the local authority;
(xi) the filing and service of evidence/further evidence on behalf of the other parties;
(xii) the filing and service of the Case Analysis and Recommendations;
(xiii) the disclosure of documents into the proceedings held by third parties, including medical records, police records and Home Office information;
(xiv) the disclosure of documents and information relating to the proceedings to non-parties;
(xv) the listing of further hearings, and case management documentation to be prepared for those hearings;
(xvi) advocates’ Meetings;
(xvii) the filing of bundles and other preparatory material for future hearings;
(xviii) technology/special measures;
(xix) media attendance and reporting;
(xx) linked or other proceedings;
(xxi) non-compliance with any court orders;
(xxii) such further or other directions as may be necessary for the purposes of case management;
(xxiii) attendance at court (including child/children's guardian);
(13) ‘Case Management Record’ means the court’s filing system for the case which includes the documents referred to at paragraph 3.12;
(14) ‘Case manager’ means the justices’ clerk or assistant justices’ clerk who manages the case in the magistrates’ courts;
(15) ‘Care Plan’ means a ‘section 31A plan’ referred to in section 31A of the 1989 Act;
(16) ‘Core Assessment’ means the assessment undertaken by the Local Authority in accordance with The Framework for the Assessment of Children in Need and their Families (Department of Health et al,2000);
(17) ‘court’ means the High Court, county court or the magistrates’ court;
(18) ‘court officer’ means –
(a) in the High Court or a county court, a member of court staff ;and
(b) in a magistrates’ court, the designated officer;
(19) ‘Experts Practice Direction’ means the Practice Direction regarding Experts in Family Proceedings relating to Children;
(20) ‘genogram’ means a family tree, setting out in diagrammatic form the family’s background;
(21) ‘hearing’ includes a directions appointment;
(22) ‘Initial Assessment’ means the assessment undertaken by the Local Authority in accordance with The Framework for the Assessment of Children in Need and their Families (Department of Health et al, 2000);
(23) ‘Initial Social Work Statement’ means a statement prepared by the Local Authority strictly limited to the following evidence –
(a) the precipitating incident(s) and background circumstances relevant to the grounds and reasons for making the application including a brief description of any referral and assessment processes that have already occurred;
(b) any facts and matters that are within the social worker's personal knowledge limited to the findings sought by the Local Authority;
(c) any emergency steps and previous court orders that are relevant to the application;
(d) any decisions made by the Local Authority that are relevant to the application;
(e) information relevant to the ethnicity, language, religion, culture, gender and vulnerability of the child and other significant persons in the form of a ‘family profile’ together with a narrative description and details of the social care and other services that are relevant to the same;
(f) where the Local Authority is applying for an interim order: the Local Authority’s initial proposals for the child (which are also to be set out in the Care Plan) including placement, contact with parents and other significant persons and the social care services that are proposed;
(g) the Local Authority's initial proposals for the further assessment of the parties during the proceedings including twin track /concurrent planning (where more than one permanence option for the child is being explored by the Local Authority);
(24) ‘legal representative’ means a –
(c) solicitor’s employee,
(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985, or
(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),
who has been instructed to act for a party in relation to the proceedings;
(25) ‘Letter Before Proceedings’ means any letter from the Local Authority containing written notification to the parents and others with parental responsibility for the child of the Local Authority’s plan to apply to court for a care or supervision order and any related subsequent correspondence confirming the Local Authority’s position;
(26) ‘Local Authority Case Summary’ means a document prepared by the Local Authority advocate for all case management hearings including –
(a) a recommended reading list and suggested reading time;
(b) the key issues in the case;
(c) any additional information relevant to the Timetable for the Child or for the conduct of the hearing or the proceedings;
(d) a summary of updating information;
(e) the issues and directions which the court will need to consider at the hearing in question, including any interim orders sought;
(f) any steps which have not been taken or directions not complied with, an explanation of the reasons for non-compliance and the effect, if any, on the Timetable for the Child;
(g) any relevant information relating to ethnicity, cultural or gender issues;
(27) ‘justices’ clerk’ has the meaning assigned to it by section 27(1) of the Courts Act 2003;
(28) ‘McKenzie Friend’ means any person permitted by the court to sit beside an unrepresented litigant in court to assist the litigant by prompting, taking notes and giving advice to the litigant;
(29) ‘Other Checklist Documents’ means the documents listed in the Pre-proceedings Checklist which will normally be on the local authority file prior to the start of proceedings but which are not –
(a) to be filed with the court on issue; or
(b) Annex Documents.
(30) ‘Other Parties’ Case Summaries’ means summaries by parties other than the Local Authority containing –
(a) the party’s proposals for the long term future of the child (to include placement and contact);
(b) the party’s reply to the Local Authority’s Schedule of Proposed Findings;
(c) any proposal for assessment / expert evidence; and
(d) the names, addresses and contact details of any family or friends who it is suggested be approached in relation to long term care / contact or respite;
(31) ‘Pre-proceedings Checklist’ means the Annex Documents and the Other Checklist Documents set out in the Public Law Outline;
(32) ‘Public Law Outline’ means the Table contained in paragraph 10;
(33) ‘Public Law Proceedings’ means proceedings for –
(a) a residence order under section 8 of the 1989 Act with respect to a child who is subject of a care order;
(b) a special guardianship order relating to a child who is subject of a care order;
(c) a secure accommodation order under section 25 of the 1989 Act;
(d) a care order under section 31(1)(a) of the 1989 Act or the discharge of such an order under section 39(1) of the 1989 Act;
(e) an order giving permission to change a child’s surname or remove a child from the United Kingdom under section 33(7) of the 1989 Act;
(f) a supervision order under section 31(1)(b) of the 1989 Act, the discharge or variation of such an order under section 39(2) of that Act, or the extension or further extension of such an order under paragraph 6(3) of Schedule 3 to that Act;
(g) an order making provision for contact under section 34(2) to (4) of the 1989 Act or an order varying or discharging such an order under section 34(9) of that Act;
(h) an education supervision order, the extension of an education supervision order under paragraph 15(2) of Schedule 3 to the 1989 Act, or the discharge of such an order under paragraph 17(1) of Schedule 3 to that Act;
(i) an order varying directions made with an interim care order or interim supervision order under section 38(8)(b) of the 1989 Act;
(j) an order under section 39(3) of the 1989 Act varying a supervision order in so far as it affects a person with whom the child is living but who is not entitled to apply for the order to be discharged;
(k) an order under section 39(3A) of the 1989 Act varying or discharging an interim care order in so far as it imposes an exclusion requirement on a person who is not entitled to apply for the order to be discharged;
(l) an order under section 39(3B) of the 1989 Act varying or discharging an interim care order in so far as it confers a power of arrest attached to an exclusion requirement;
(m) the substitution of a supervision order for a care order under section 39(4) of the 1989 Act;
(n) a child assessment order or the variation or discharge of such an order under section 43(12) of the 1989 Act;
(o) an order permitting the Local Authority to arrange for any child in its care to live outside England and Wales under paragraph 19(1) of Schedule 2 to the 1989 Act;
(p) a contribution order, or the variation or revocation of such an order under paragraph 23(8), of Schedule 2 to the 1989 Act;
(q) an appeal under paragraph 8(1) of Schedule 8 to the 1989 Act.
(34) ‘rules’ means rules of court governing the practice and procedure to be followed in Public Law Proceedings;
(35) ‘Schedule of Proposed Findings’ means the schedule of findings of fact prepared by the Local Authority sufficient to satisfy the threshold criteria under section 31 (2) of the 1989 Act and to inform the Care Plan;
(36) ‘section 7 report’ means any report under section 7 of the 1989 Act;
(37) ‘section 37 report’ means any report by the Local Authority to the court as a result of a direction under section 37 of the 1989 Act;
(38) ‘Social Work Chronology’ means a schedule containing –
(a) a succinct summary of the significant dates and events in the child's life in chronological order – a running record to be updated during the proceedings;
(b) information under the following headings –
(i) serial number;
(iv) witness or document reference (where applicable);
(39) ‘specified proceedings’ has the meaning assigned to it by section 41(6) of the 1989 Act;
(40) ‘Standard Directions on Issue’ mean directions made by the court which will include such of the directions set out in the Public Law Outline, Stage 1, column 1 as are appropriate to the proceedings;
(41) ‘Standard Directions on First Appointment’ means directions made by the court which will include such of the directions set out in the Public Law Outline, Stage 1, column 2 and directions relating to the following as are appropriate to the proceedings –
(a) the Timetable for the Child;
(b) the joining of a party to the proceedings;
(c) the appointment of a guardian ad litem or litigation friend including the Official Solicitor where appropriate for a protected party or non subject child;
(d) allocation of the case to a case manager or case management judge;
(e) experts in accordance with the Experts Practice Direction;
(f) the interim care plan setting out details as to proposed placement and contact;
(g) any other evidence( such as evidence relating to vulnerability, ethnicity, culture, language, religion or gender) and disclosure of evidence between the parties;
(h) filing and service of the draft of the Case Management Order before the Case Management Conference;
(i) listing the Issues Resolution Hearing and Final Hearing;
(j) media attendance and reporting;
(42) ‘Strategy Discussion Record’ means a note of the strategy discussion within the meaning of ‘Working Together to Safeguard Children’ (2006);
(43) ‘Timetable for the Child’ has the meaning assigned to it by the rules. (see paragraph 3.2 of this Practice Direction).