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Wednesday, January 12, 2011

Family courts system accused of hiding evidence from parents - Times Online

The Times

Image via WikipediaArticle from Times Online April 29 2009

Family courts system accused of hiding evidence from parents - Times Online

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MyAngel2009: Essex, United Kingdom; I am a British born American, currently living in Essex, England after living in South Florida for 11 years. I returned to the UK in the Summer of 2007, for an extended vacation: However, due to unexpected circumstances, I have since remained here. My beautiful daughter was born in September 2009. She is absolutely incredible, and I love her dearly. I cherish every moment we have together.

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Practice Direction: Allocation & Transfer Proceedings

Judiciary E&W & MOJ> PLO >

Practice Direction: Allocation & Transfer of proceedings issued on 3 November 2008

1.1 This Practice Direction is given by the President of the Family Division under the powers delegated to him by the Lord Chief Justice under paragraph 2(2) of part 1 of Schedule 2 to the Constitutional Reform Act 2005 and is agreed by the Lord Chancellor.

1.2 The objective of this Practice Direction is to ensure that the criteria for the transfer of proceedings are applied in such a way that proceedings are heard at the appropriate level of court, that the capacity of magistrates' courts is properly utilised and that proceedings are only dealt with in the High Court if the relevant criteria are met.

1.3 This Practice Direction will come into effect on 25 November 2008. Where practicable, it applies to proceedings started before but not concluded by 25 November. The Practice Directions of 5 June 1992 (distribution of business) and 22 February 1993 (applications under the Children Act 1989 by children) are revoked except that they will continue to apply to any proceedings to which it is not practicable to apply this Practice Direction.

1.4 A reference to an article is a reference to the article so numbered in the Allocation and Transfer of Proceedings Order 2008.

Part 1
2 This Part of this Practice Direction applies to all family proceedings (whether or not the Allocation and Transfer of Proceedings Order 2008 applies to such proceedings).

Timing and continuing review of decision on appropriate venue
3.1 The issue as to which court is the most appropriate hearing venue must be addressed by the court speedily as soon as there is sufficient information to determine whether the case meets the criteria for hearing in that court. This information may come to light before, during or after the first hearing. It must then be kept under effective review at all times; it should not be assumed that proceedings will necessarily remain in the court in which they were started or to which they have been transferred. For example proceedings that have been transferred to a county court because one or more of the criteria in article 15 applies should be transferred back to the magistrates' court if the reason for transfer falls away. Conversely, an unforeseen late complication may require a transfer from a magistrates' court to a county court.

3.2 Where a court is determining where the proceedings ought to be heard it will consider all relevant information including that given by the applicant either in the application form or otherwise, for example in any request for proceedings to be transferred to another magistrates' court or to a county court under rule 6 of the Family Proceedings Courts (Children Act 1989) Rules 1991.

Timeliness
4.1 Article 13 and paragraph 12.1 require the court to have regard to delay. Therefore the listing availability of the court in which the proceedings have been started and in neighbouring magistrates' courts and county courts must always be ascertained before deciding where proceedings should be heard.

4.2 If a magistrates' court is considering transferring proceedings to a county court or a county court is considering transferring proceedings to the High Court but that decision is finely balanced, the proceedings should not be transferred if the transfer would lead to delay. Conversely, if the High Court is considering transferring proceedings to a county court or a county court is considering transferring proceedings to a magistrates' court but that decision is finely balanced, the proceedings should be transferred if retaining them would lead to delay.

4.3 Transferring proceedings may mean that there will be a short delay in the proceedings being heard since the papers may need to be sent to the court to which they are being transferred. The court will determine whether the delay is significant, taking into account the circumstances of the case and with reference to the interests of the child.

4.4 While there is no express reference in the Allocation and Transfer of Proceedings Order 2008 or in Part 3 of this Practice Direction to the length of the hearing or to judicial continuity such issues may be relevant.

Transfer of proceedings to or from the High Court
5.1 A court will take into account the following factors (which are not exhaustive) when considering whether the criteria in articles 7 or 18 or paragraph 11.2 or 12.3 apply, such that the proceedings ought to be heard in the High Court-

(1) there is alleged to be a risk that a child concerned in the proceedings will suffer

serious physical or emotional harm in the light of -

(a) the death of another child in the family, a parent or any other material person; or

(b) the fact that a parent or other material person may have committed a grave crime, for example, murder, manslaughter or rape,

in particular where the essential factual framework is in dispute or there are issues over the causation of injuries or a material conflict of expert evidence;

(2) the application concerns medical treatment for a child which involves a risk to the child's physical or emotional health which goes beyond the normal risks of routine medical treatment;

(3) an adoption order is sought in relation to a child who has been adopted abroad in a country whose adoption orders are not recognised in England and Wales;

(4) an adoption order is sought in relation to a child who has been brought into the United Kingdom in circumstances where section 83 of the Adoption and Children Act 2002 applies and

(a) the person bringing the child, or causing the child to be brought-

(i) has not complied with any requirement imposed by regulations made under section 83(4); or

(ii) has not met any condition required to be met by regulations made under section 83(5) within the required time; or

(b) there are complicating features in relation to the application;

(5) it is likely that the proceedings will set a significant new precedent or alter existing principles of common law;

(6) where periodical payments, a lump sum or transfer of property are an issue-

(a) the capital value of the assets involved and the extent to which they are

available for, or susceptible to, distribution or adjustment;

(b) any substantial allegations of fraud or deception or non-disclosure;

(c) any substantial contested allegations of conduct.

5.2 The following proceedings are likely to fall within the criteria for hearing in the High Court unless the nature of the issues of fact or law raised in the proceedings may make them more suitable to be dealt with in a county court-

(1) proceedings involving a contested issue of domicile;

(2) applications to restrain a respondent from taking or continuing with foreign proceedings;

(3) suits in which the Queen's Proctor intervenes or shows cause and elects trial in the High Court;

(4) proceedings in which an application is opposed on the grounds of want of jurisdiction;

(5) proceedings in which there is a complex foreign element or where the court has invited submissions to be made under Article 11 (7) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility;

(6) proceedings in which there is an application to remove a child permanently or temporarily from the jurisdiction to a non-Hague Convention country.

(7) interlocutory applications involving-

(a) search orders; or

(b) directions as to dealing with assets out of the jurisdiction.

5.3 Proceedings will not normally be suitable to be dealt with in the High Court merely because of any of the following-

(1) intractable problems with regard to contact;

(2) sexual abuse;

(3) injury to a child which is neither life-threatening nor permanently disabling;

(4) routine neglect, even if it spans many years and there is copious documentation;

(5) temporary or permanent removal to a Hague Convention country;

(6) standard human rights issues;

(7) uncertainty as to immigration status;

(8) the celebrity of the parties;

(9) the anticipated length of the hearing;

(10) the quantity of evidence;

(11) the number of experts;

(12) the possible availability of a speedier hearing.

5.4 A substantial reason for starting proceedings in the High Court will only exist where the nature of the proceedings or the issues raised are such that they ought to be heard in the High Court. Where proceedings have been started in the High Court under article 7(c) or paragraph 11.2(4) and the High Court considers that there is no substantial reason for them to have been started there, the High Court will transfer the proceedings to a county court or a magistrates' court and may make any orders about costs which it considers appropriate.

Part 2
6 This Part of this Practice Direction applies to family proceedings to which the Allocation and Transfer of Proceedings Order 2008 applies.

Transfer of proceedings from one magistrates' court to another or from one county court to another
7 Where a magistrates' court is considering transferring proceedings to another magistrates' court or a county court is considering transferring proceedings to another county court, the court will take into account the following factors (which are not exhaustive) when considering whether it would be more convenient for the parties for the proceedings to be dealt with by the other court-

(1) the fact that a party is ill or suffers a disability which could make it inconvenient to attend at a particular court;

(2) the fact that the child lives in the area of the other court;

(3) the need to avoid delay.

Transfer of proceedings from a magistrates' court to a county court

8.1 Where a magistrates' court is considering whether one or more of the criteria in article 15(1) (except article 15(1)(g) and (h)) apply such that the proceedings ought to be heard in the county court, the magistrates' court will first consider whether another magistrates' court would have suitable experience to deal with the issues which have given rise to consideration of article 15. If so, the magistrates' court will then consider whether the proceedings could be dealt with more quickly or within the same time if they were transferred to the other magistrates' court rather than a county court. If so, the magistrates' court will transfer the proceedings to the other magistrates' court rather than a county court.

8.2 A magistrates' court may only transfer proceedings to a county court under article 15(1 )(a) if it considers that the transfer will significantly accelerate the determination of the proceedings. Before considering a transfer on this ground, the magistrates' court must obtain information about the hearing dates available in other magistrates' courts and in the relevant county court. The fact that a hearing could be arranged in a county court at an earlier date than in any appropriate magistrates' court does not by itself justify the transfer of proceedings under article 15(1 )(a); the question of whether

the determination of the proceedings would be significantly accelerated must be considered in the light of all the circumstances.

Transfer of proceedings from a county court to a magistrates' court
9.1 A county court must transfer to a magistrates' court under article 16(1) proceedings that have previously been transferred under article 15(1) where the county court considers that none of the criteria in article 15(1) apply. In particular, proceedings transferred to a county court by a magistrates' court for resolution of a single issue, for example, use of the inherent powers of the High Court in respect of medical testing of a child or disclosure of information by HM Revenue and Customs, should be transferred back to the magistrates' court once the issue has been resolved.

9.2 Subject to articles 5(3), 6, 8 and 13 and paragraphs 4 and 12.1, straightforward proceedings for-

(1) a residence order;

(2) a contact order;

(3) a prohibited steps order;

(4) a specific issue order;

(5) a special guardianship order; or

(6) an order under Part 4 of the Family Law Act 1996

which are started in a county court should be transferred to a magistrates' court if the county court considers that none of the criteria in article 15(1 )(b) to (i) apply to those proceedings.

Part 3
10 This Part of this Practice Direction applies to any family proceedings to which the Allocation and Transfer of Proceedings Order 2008 does not apply.

Starting proceedings
11.1 Subject to paragraph 11.2, family proceedings must be started in a county court.

11.2 Family proceedings may be started in the High Court only if-

(1) the proceedings are exceptionally complex;

(2) the outcome of the proceedings is important to the public in general;

(3) an enactment or rule requires the proceedings to be started in the High Court; or

(4) there is another substantial reason for starting the proceedings in the High Court.

Transferring proceedings

12.1 When making any decision about the transfer of proceedings the court must have regard to the need to avoid delay in the proceedings.

12.2 A county court will take into account the following factors (which are not exhaustive) when considering whether to transfer proceedings to another county court-

(1) whether the transfer will significantly accelerate the determination of the proceedings;

(2) whether it is more convenient for the parties for the proceedings to be dealt with by another county court; and

(3) whether there is another good reason for the proceedings to be transferred.

12.3 A county court will take into account the following factors (which are not exhaustive) when considering whether to transfer proceedings to the High Court-

(1) whether the proceedings are exceptionally complex;

(2) whether the outcome of the proceedings is important to the public in general;

(3) whether an enactment or rule requires the proceedings to be dealt with in the High Court; and

(4) whether there is another substantial reason for the proceedings to be transferred.

12.4 The High Court will also take into account the factors in paragraph 12.3 when considering whether to transfer proceedings to a county court.

Mark Potter
The Right Honourable
Sir Mark Potter
The President of the Family Division

By authority of the Lord Chancellor
Bridget Prentice MP
Parliamentary Under Secretary of State, Ministry of Justice

Issued on 3 November 2008

See also the accompanying SI: Allocation and Transfer of Proceedings Order 2008

Keywords:
family proceedings
procedure

Justice4Children on Multiply

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MOJ: Care Proceedings Reform 2010

MOJ > Guidance > Care Prodeedings Reform

The information to follow is extremely valuable to anyone involved in Care & Supervision Proceedings. Within the content I have included direct links to downloadable documents and links relating to the guidance in reference

Care proceedings reform

We are committed to reducing unnecessary delay in care proceedings, bringing together all the agencies involved in the care proceedings system with local accountability.

Local performance improvement groups

A new system-wide approach to reducing delay in care proceedings came into force on 1 April 2010. An element to this approach has been the establishment of local performance improvement groups bringing together local decision makers from all the agencies across the care proceedings system to develop local solutions to local problems. This approach is in line with the government’s shift towards local accountability.

Reducing unnecessary delay in care and supervision proceedings (PDF 0.17mb 26 pages)

Practice direction public law proceedings guide to case management: April 2010

The Judiciary for England and Wales and the Ministry of Justice have issued a new case management Practice Direction, which comes into force on 6 April 2010, and replaces the Public Law Outline Practice Direction (April 2008).

New court forms

To support the new Public Law Practice Direction (April 2010), we have introduced a new application form C110 for care and supervision orders. The form C1 has also been revised to reflect these changes.

Others new forms for Standard Directions are the PLO 8 and the PLO 9.

Practice Direction and forms

Preparing for care and supervision proceedings

A best practice guide for professionals working in child care and supervision proceedings.

The guide is for use by all professionals involved with childen and their families before proceedings and in preparation for applications made under section 31 of the Children Act 1989.

The guide has been produced by the Ministry of Justice in cooperation with the Department for Children, Schools and Families, the Welsh Assembly Government and the Judiciary of England and Wales.

Preparing for care and supervision proceedings (PDF 0.41mb 40 pages)

Revised statutory guidance for local authorities

The Department for Children, Schools and Families and the Welsh Assembly Government have issued revised statutory guidance to assist local authorities.

This sets out all the steps local authorities need to take before they apply to court for a care or supervision order. The revised guidance came into force in both England and Wales on 1 April 2008.

DCSF: The Children Act 1989 Guidance and Regulations Volume 1: Court Orders (England)
Welsh Assembly Government: The Children Act 1989 Guidance and Regulations Volume 1: Court Orders (Wales)

Parent’s Pack – information for parents about care proceedings

This is a booklet for parents who may be about to be taken to court by a local authority because of concerns over the safety and welfare of their child. It gives parents information in a clear and straightforward manner about what is involved in court proceedings and the various stages in the process. It is intended that parents should receive this information from local authorities at the stage at which a Letter before Proceedings is issued.

Parent's pack (PDF 1.36mb 28 pages)
Pecyn Gwybodaeth i Rieni (PDF 1.60mb 28 pages)

Public Law Outline

The Judiciary for England and Wales and the Ministry of Justice have issued a new case management practice direction, the Public Law Outline.

The Public Law Outline streamlines the court process and requires that the case timetable is focused around the needs of the individual child involved.

The Public Law Outline replaced the Public Law Protocol and came into force on 1 April 2008.

Judiciary for England and Wales: Public Law Outline - Guide to Case Management in Public Law Proceedings
(PDF 0.65mb, 46 pages)
HM Courts Service: Protocol for Judicial Case Management in Public Law Children Act Cases

Evaluation of the Public Law Outline

Early research on the impact of implementing the Public Law Outline and the level of compliance with the new procedures was commissioned by the Ministry of Justice, DCSF and the Welsh Assembly Government.

The research involved a small sample of cases as well as a range of practitioner perspectives, and was conducted by the National Centre for Social Research (Natcen), in partnership with Dr Julia Brophy (Centre for Family Law and Policy, University of Oxford).

Evaluation of the Public Law Outline

Experts practice direction

The President of the Family Division issued a new practice direction on the use of experts to replace the guidance in the Public Law Protocol. The new experts practice direction came into effect on 1 April 2008.

Practice Direction - experts in family proceedings relating to children (PDF 0.14mb 14 pages)

Pre-proceedings legal advice

The Legal Services Commission provides non-means and non-merit publicly funded legal advice for parents and those with parental responsibility. Access to this service is triggered when the local authority gives written notice of the potential to issue care proceedings.

The aim of the service is to work with the family to help resolve issues or avoid the need for court proceedings, if the necessary improvements can be agreed.

Full details about Family Help (Lower) Level 2 are in section 20 of the LSC Funding Code: Decision Making Guidance - Family.

LSC: Funding Code
LSC: pay rates and schemes

Lord Laming's report

Lord Laming was commissioned to prepare an independent report on the arrangements to safeguard children in England. His report was published on 12 March 2009, with a total of 58 recommendations. The government responded immediately and accepted all the recommendations in full, followed by a detailed action plan on 6 May 2009.

The protection of children in England: a progress report
The protection of children in England: action plan - the government's response to Lord Laming

Chief Adviser on the Safety of Children

The government has appointed Sir Roger Singleton to be its Chief Adviser on child safety in England. Sir Roger will play a key role in ensuring that the government delivers the pledges made in the government's action plan.

Chief Adviser on the Safety of Children

Contact us

Related information

Research: Care profiling study
News release: Reducing delay in child care proceedings
Child care proceedings
Family procedure rules

Related external links

DfE: Safeguarding and social work reform:
DCSF: Every Child Matters
Care Matters: Time for Change

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