Child Protection and Care Orders
The threat of having a child taken into care is most parent’s worst nightmare. Dealing with Social services can be daunting, but certain procedures must be followed before they can remove a child. These procedures include:
- Section 47 enquiry
- Pre-proceedings Letter
- Reports by Social Services
- Pre-proceedings Meeting.
As soon as the parents, guardians or carers have received the Pre-proceedings Letter, they are entitled to Legal Aid. As well as, the advice of a Social Services solicitor who can guide parents through the process. Your solicitor will also be able to present your case at the Pre-proceedings Meeting.
Prior to the Pre-proceedings Meeting, you will receive reports that you can discuss it with your solicitor.
If your child or children are old enough to understand what is happening, they will also receive a copy of the reports from Social Services. They can also attend the Pre-proceedings Meeting.
Contact A Family Solicitor
It is important to contact a family solicitor as soon as possible to maximise the amount of preparation time for your argument to Social Services.
It is also worth noting a Pre-proceedings Meeting does not necessarily mean children will be removed from their family. Unless a child or children are at immediate risk or have already been harmed.
It is possible to apply to the court to prevent Social Services obtaining a Care Order. In some cases they may agree to supervise families for a period of time set out in the Supervision Order.
A supervision order gives your local authority the power to monitor your child’s needs and progress. A social worker will be appointed to advise, help and befriend the child. The appointed Social Worker will also be able to provide help and support to the family as a whole.
In some cases, conditions can be attached to a supervision order.
How is a supervision order made?
In order for a Supervision Order to be granted the local authority must first apply. This will happen if there are legitimate concerns that a child is suffering significant harm, or is likely to suffer significant harm, and the harm is because:
- of the care being provided by the parent
- the child is beyond parental control.
If there is little or no evidence to back up these claims, then the court can’t make an order. With evidence, the court will decide whether it should make a supervision order, a care order or no order at all.
The first court hearing is called a Case Management Hearing. The hearing should take place no later than 12 days after the date the papers have been issued. A timetable for future hearings will also be worked out. You have the right to attend court and have your say on whether a supervision order should be made. Alternatively your family solicitor can speak on your behalf. If you would like a solicitor to represent you, please contact us and we will ask one of our family solicitors to contact you to discuss your case. It is worth noting that Legal Aid is available for these matters.
How long does a supervision order last?
A supervision order is in place for one year, but it can be discharged earlier. It can also be extended for a total of up to three years if needed.
Can I appeal against a supervision order?
You can appeal against a supervision order, but rarely successfully. If a supervision order is granted, you are required to work closely with the local authority. Appealing against the supervision order could make that difficult. If you want to appeal against a supervision order, we recommend speaking to one of our family solicitors first. They can evaluate your chances of successfully appealing.
What happens if I break the conditions of the supervision order?
If you break conditions in a supervision order, it doesn’t automatically mean that it’ll be changed into a care order. However if the local authority feel that your child or children are at risk they can apply for a Care Order.
If you need any help or advice regarding child protection issues, please fill in the enquiry form to the right.
How long does it take to get an injunction?
If you are in immediate danger, an application can be made to the court on the same day without your abuser being there. This is called a ‘without notice’ or ex parte application. The court will need to consider whether or not you are at risk of significant harm. Also whether you will be prevented or deterred from applying if you have to wait. As well as, if your abuser is avoiding being served notice to appear before the court.
If the court grants a ‘without notice’ order, you will have to return to court for a full hearing. This is once your abuser has been served with notice.
If there are other family proceedings already in progress (for example, for a residence or contact order for a child) the court may wish to hear the whole case together. However, they can still grant an emergency order while you are waiting for the full hearing.
What evidence will be needed?
You will need to make a sworn statement (sometimes called an affidavit) to the court about the physical and emotional abuse you have experienced. You should be as precise as possible about all the ways you have been physically and emotionally harmed. Include the dates and times (if you have them) and the effects on you and your children. It is important that you or your solicitor provides the court with as much evidence as possible. Consider all aspects of harm caused by your partner or ex-partner’s abusive behaviour. It will help if you kept a record of past events, or if you have independent evidence. For example, police reports or medical records.
The court has discretion when deciding to make an order, and has to look at all the circumstances. This includes
- the likely effect of any order on the health, safety and well-being of you and your partner or ex-partner.
- your conduct in relation to each other,
- your needs,
- and your financial and housing resources.
An undertaking to the court
The court sometimes suggests that, instead of an injunction, the abuser should make an undertaking (a promise) to the court not to harass or threaten you. While this is supposed to have the same strength as a court order, in practice, undertakings cannot be enforced effectively, as powers of arrest cannot be attached. The court should never accept an undertaking where violence has been used or threatened. You do not have to agree to accept an undertaking if you do not want to.
If you are applying for an occupation order and do not have a legal entitlement to occupy the property, the court must apply a ‘balance of harm’ test. That is, a test to determine who will suffer the most harm if an order is not made.
Once an order has been made, you should have a copy, and your solicitor should arrange for a printed copy to be handed personally to your abuser. The injunction will not be effective if there is no proof that your abuser received it.
Power of arrest
If your abuser has used or threatened physical violence, and the court accepts this at a full hearing of the case, then it must attach a power of arrest to an injunction (unless it believes you will be adequately protected without this). This means that a copy of the order must be held on record at the police station (you or your solicitor should ensure that this happens). The police can arrest immediately if the order is broken, even without a specific criminal offence having been committed. A power of arrest may be attached if the court believes you are likely to be at risk of harm. This is true even if the hearing was held ‘without notice’.
Under new legislation, breach of a non-molestation order will automatically become a criminal offence. Occupation orders will be treated differently, however, and a separate ‘power of arrest’ will still be needed.
What happens if the abuser breaks the order?
If your abuser breaks the terms of the injunction, and you are at all fearful for your safety or that of others, you should call the police. If he has breached a non-molestation order made after 1st July 2007, or if there is a power of arrest attached, the police should arrest the abuser (see above). In this instance, the police are required to bring him back before the court within 24 hours. If there is no power of arrest, then you may have to go back to court yourself and apply for an arrest warrant. Your abuser is in contempt of court for disobeying a court order. The court may then fine your abuser, impose a suspended sentence, or commit to prison (rare for a first offence). The court is also likely to add a power of arrest to the injunction in order to strengthen it in future.
Under the Domestic Violence Crime and Victims Act, 2004, breach of a non-molestation injunction will become a criminal offence. This means that once this provision comes into effect, the police should treat any breach of such an order just like any other criminal offence; so if they arrest your abuser, he will be taken to the Magistrates’ Court, and not back to the County Court or Family Proceedings Court. This should strengthen the power of court orders. (See also the section on Police and the criminal prosecution process).
If, however, you are unhappy about the enforcement process being taken out of your hands, it should still be possible for you to take your abuser back to the County Court or Family Proceedings Court for contempt of court – in the same way as you have to do for the breach of an occupation order.
For further help and advice on injunctions please telephone 0333 2070 601
Contact Us About Child Protection & Care Orders Today
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