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Best Practice Guidelines

These guidelines are a statement of best practice for the provision of legal services by private practitioners who are on the   Child Care Panel. Solicitors who are included in the   are expected to broadly comply with the Guidelines.  Circumstances may arise where a solicitor does not follow these guidelines.  In such circumstances the specific reasons for not doing are to be noted in writing on the client file.  This is necessary for effective risk management / quality assurance purposes and to protect the Board where complaints are made to the Board and/or proceedings are initiated against the Board alleging negligence in the provision of services. 

The Board will endeavour to refer cases to a private practitioner in a timely manner so as to ensure compliance with court dates. Should a case be referred within close proximity to a court date, the solicitor will be contacted so as to ensure that he or she they are in a position to meet it. 

Key Stage 1: Pre Court • Cases on foot of the Child Care Act 1991are prioritised by the Board and persons who have been served with applications on foot of sections 17, 18 or 19 of the Act should be given the earliest possible appointment.

• During the course of representing the client, the client may request that his or her solicitor to attend a case conference or case conferences organised by the Child and Family Agency. Solicitors should note that there is no extra fee granted for attending such conferences.

• The client is likely to present with no more than the court papers including any emergency or interim care orders that have been made. Brief instructions should be taken in relation to the factual detail and the recent history. Information / advice should also be given about the court process and about the nature of the application that has been served on the client. If Care and Supervision applications have been served, the difference between the two should be explained.  Authorities should also be obtained from the client to enable information to be obtained from the Child and Family Agency.

• If an Emergency Care Order has been made on an ex parte basis the Child and Family Agency’s solicitor should be written to requesting notes of the evidence given before the Court on foot of the ex parte application.

• The process of managing the client’s expectations should be commenced. It is necessary to keep the client informed of the process and what the potential outcomes or likely outcome will be while at the same time making sure that the client understands that you are their legal representative and that as part of your duty you will be representing them to the best of your abilities.

• The Child and Family Agency’s solicitor should be contacted immediately for the purpose of getting copies of social work, psychological and other reports and copies the notes of any case conferences that have taken place. Depending on local arrangements / circumstances, a written authority from the client should be furnished to the solicitor. Every effort should be made to get the documentation at the earliest possible opportunity. The Child and Family Agency’s solicitor should be asked to confirm that this is all the material available and also whether any further material will be made available before the Court hearing. It should also be noted in this letter that your client is not consenting to material being furnished to the Court in the absence of an express consent.

• Regard should be had throughout the course of the case, that the Court is a ‘court of enquiry’ and that the Court’s considerations must have regard to the welfare of the child as the first and paramount consideration and that it must give due consideration to the wishes of the child and have regard to the principle that it is generally in the best interest of a child to be brought up in his or her own family.

• Upon receipt of the documentation from the Child and Family Agency’s solicitor, the solicitor should review it and should determine the issues of concern that have given rise to the application being made and the supports that have been provided by the Child and Family Agency to try and address those issues.

• Following the review a further consultation should be arranged with the client. The purpose of this consultation should be to review the content of the material received from the Child and Family Agency, to ascertain what supports the Child and Family Agency has provided to enable the issues of concern to be addressed, to discuss with the client what steps he or she is able and willing to take to address the issues of concern, to explore what alternative options might be presented to the Child and Family Agency and / or the court and to explore the client’s attitude to the application(s). Significant time should be given to this consultation as it is important to determine what issues of fact are agreed and what issues are disputed. If care proceedings have been served and supervision proceedings might be an alternative, instructions should be taken whether the client might be willing to consent to a Supervision Order. Instructions should also be taken as to whether the client wishes to contest the next court application, particularly if it is the first application at which he or she will have had legal representation.

• If the client wishes to contest the next application, immediate enquiries should be made to ascertain what evidence might be available to support the applicant’s case. It is often the case that the client’s GP will have significant information about the family and may be of assistance. If the client indicates that broader family support may be available, contact should be made with those persons whom the client indicates may be willing to offer support. Persons who it is considered can give evidence to benefit the client’s case should be contacted in relation to their availability to give evidence.

• A solicitor should review the material that has been furnished by the Child and Family Agency’s solicitor and should determine in consultation with the client if needs be, what material, if any, can be submitted to the court in report form prior to the case commencing. If it is considered that there is material that should not be submitted to the court and the local practice in the past is that the material has been submitted without reference to the respondent(s) or their legal adviser(s), the Child and Family Agency’s solicitor should be written to making it clear that material should not be submitted to the Court without your express consent.

• A solicitor should also consider whether it is appropriate to apply to have a guardian ad litem appointed to represent the child. If it is considered appropriate to make such an application the solicitor should identify possible persons who it is considered would be suitable to act as a guardian ad litem. In considering their suitability regard should be had to the contents of the Children Acts Advisory Board publication Giving a voice to children’s wishes feelings and interests. This document sets out, inter alia, the standards for qualification for a guardian ad litem. A solicitor should liaise with the Child and Family Agency’s solicitor to ascertain if the appointment of a (particular) guardian ad litem can be agreed.

• A solicitor should anticipate what evidence is likely to be given on behalf of the Child and Family Agency for the purpose of the next interim application and to prepare a cross examination based on that anticipated evidence. A solicitor should also prepare to lead his or her client through their evidence and to lead any other witnesses to be called on behalf of the client through their evidence.

• Contact should be made with the Child and Family Agency to see if there is any prospect of reaching a settlement that is mutually acceptable to the client and the Child and Family Agency. Particular regard should be had to whether it might be possible to agree a Supervision Order on that basis that any Care proceedings would be struck out or would be adjourned for a period of time without an interim care order being put in place.

• On the day of the emergency / interim hearing the solicitor should engage with the Child and Family Agency’s solicitor to see what evidence might be agreed. It may be the case that no evidence is agreed in which event the solicitor should advocate on behalf of the client. Solicitors should be mindful of the rules of evidence and should be particularly careful in relation to the admission of hearsay evidence. In this regard solicitors should be mindful of the provisions of Part III of the Children Act 1997 and in particular to section 23 thereof.

• At the hearing of any interim application an application may also be made to have a guardian ad litem appointed to represent the child (if it considered appropriate make such an application and subject to the client’s instructions – see above).

• If an interim care Order is made the client should be written to advising him or her of the Order, the consequences of it, the fact that the Order remains in force for a limited period of time, the likely date of the full hearing, and the steps that the client can take to address the concerns that have given rise to the proceedings being taken in the first place. If it is the case that significant evidence has been heard at the interim application and there is little prospect of any further interim applications being successfully contested, the client should be so advised.

• Following the interim hearing, consideration should be given to the development of a longer term strategy for the conduct of the case. Potential expert witnesses might be identified and enquiries made whether they can undertake an assessment and prepare a report. Any such witnesses should have a speciality that will be able to give an expert opinion on an issue that is central to the case. Authority (in advance) may be sought for the payment of their fees and if that authority is forthcoming they may be retained. Any such expert witnesses should be fully and properly briefed to include a comprehensive letter of instruction. Solicitors are reminded that no expert witness should be engaged without prior approval from the Board.

• Careful consideration should also be given to whether all relevant material has been made available by the Child and Family Agency including whether all social work files have been made available. If necessary an application for discovery may be made. In the absence of an application for discovery, a request under the Freedom of Information legislation should be considered.

• If a guardian ad litem has been appointed, contact should be made with the Child and Family Agency’s solicitor with a view to agreeing a joint letter to the guardian giving relevant background information.

• If there has been a contested hearing at an earlier application for an interim care order and absent a significant change in circumstances, the client may be advised that there is little to be gained by contesting further interim applications and that it may be in their best interests not to contest further interim applications and instead to concentrate on addressing the issues or concerns that gave rise to the proceedings.

• A copy of the Child and Family Agency’s draft Child Protection Plan should be sought from the Child and Family Agency’s solicitor prior to the full hearing. If a copy is furnished the Plan should be reviewed and it may be appropriate to ask any expert retained on behalf of the client to comment on the draft Plan. General regard should be had throughout to the provisions of “Children First”, the National Guidelines for the Protection and Welfare of Children published by the Department of Health and Children (see particularly section 5.9).

• Prior to the matter coming on for full hearing efforts should be made with the Child and Family Agency’s solicitor to agree the evidence that may be agreed and, if possible, to narrow the issues in dispute. It is recognised that because of the nature of the proceedings it may be difficult to narrow the issues. A check should also be made in relation to the availability of expert witnesses that may be called on behalf of the client. A decision should be made on a case by case basis in relation to the requirement of any expert witness to hear the evidence of other witnesses in the case.

• At the hearing itself (of a contested application) the solicitor should remain mindful of the possibility of hearsay evidence being introduced on behalf of the Child and Family Agency. Efforts should be made to ensure that only the best evidence is put before the Court. If it is the case that reports are submitted to the Court / Judge without the knowledge or consent of the client, consideration should be given to whether it is appropriate to make an application to have the Judge discharge himself / herself from the case.

As part of this consideration however, regard should be had to the overall case. For example if it is considered that there is no prospect of successfully defending the application before any Court, the broader benefit of judicial review proceedings may need to be considered very carefully, particularly having regard to the provisions of section 23 of the 1991 Act which enables a Court to effectively keep a child in care even where it finds a care order invalid.

• Careful regard should be had to the role of any guardian ad litem appointed and in particular to the role of any legal advisers who might be acting on behalf of the guardian ad litem. In relation to the guardian ad litem, solicitors should be aware of the contents of the Children Acts Advisory Board publication Giving a voice to children’s wishes feelings and interests, which sets out guidance on the role, criteria for appointment, qualifications and training of guardians ad litem appointed on foot of the Child Care Act 1991. Solicitors should have regard to the fact that the publication delivers guidance only. It should be noted that the CAAB identified the role of the guardian ad litem as being to “independently establish the wishes, feelings and interests of the child and present them to the court with recommendations”.

• In relation to the appointment of lawyers to act for a guardian ad litem solicitors should note that the guidance does not make any reference to the appointment of lawyers to act for a guardian ad litem, nor is there any express provision in the legislation permitting such lawyers to be appointed. Furthermore as it would appear that the guardian ad litem is a Court appointed officer and is not a party to the proceedings, there is a strong argument that he or she is not entitled to legal representation. In any event it is not the role of any lawyers appointed to act on behalf of the guardian ad litem to ‘fill in the gaps’ that may exist in relation to the Child and Family Agency’s case. Any concerns in relation to the guardian ad litem or his or her lawyers overstepping their role should be raised with the Court appropriately.

• Solicitors should bear in mind that if a guardian ad litem is appointed to a child, a solicitor cannot also be appointed to act on behalf of the child.

• Throughout the hearing regard should be had to the apparent strength of the applicant’s case. The reality in a number of these cases is that the ‘high point’ of the client’s case may well be reached at the conclusion of the Child and Family Agency’s presentation of their evidence. Regard should be had to whether putting the client in the witness box is likely to further their case. They should be made aware before they give evidence, of the requirement to do so in a contested matter and of the fact that they will be cross examined by the Child and Family Agency’s lawyers. Careful instructions should be taken in this regard.

• When the Court gives its decision, regard should be had to whether an application should be made to have the case reviewed at a later date. Consideration should also be given to asking the Court to make a direction that the matter come back before the court in the event of any significant change in the child protection plan for example the breakdown of a particular foster placement.

• At the conclusion of the case and when a decision is made, the client should be advised of the decision, any review dates that are set by the Court, the possibility of seeking to discharge any Order that might be made at a later stage if there is a change in circumstances, the possibility of appealing and the merit or otherwise of doing so, the steps that it is considered the client might take in order to improve his or her circumstances, the need to remain engaged with the Child and Family Agency in relation to access and the possibility of making an application to the Court for access if suitable arrangements cannot be agreed with the Child and Family Agency.

• If the Court has set a review date within a period of twelve months the file should be kept open. If no review date has been set or if a review date has been set that is more than twelve months hence the file should be closed and the client should be asked to reapply to the Legal Aid Board for legal services for the purpose of the review.

• Throughout the course of the case, the client should be kept informed informally and in writing of developments, including Court dates. It is a probable reality that the client’s life is in a state of significant upheaval. While it may be the case that the client will not engage as effectively as a client in a private law matter might, it is essential that the client be kept informed. Keeping the client orally informed is not sufficient and the client should be written to regularly.