1.1 Who should read this practice note?
Solicitors acting in public law Children Act proceedings.
1.2 What is the issue?
The Law Society's guidance has been sought on the application to local authority Children Act meetings of Outcome 11.01 and Indicative Behaviour 11.4 in the Solicitors Regulation Authority Code of Conduct 2011.
It has been suggested that if parents have retained a solicitor who is not present at the local authority Children Act meeting, then the local authority solicitor can only attend the meeting with the parents' solicitor's consent. It is the Law Society's view that this is not the case and that giving legal advice to a local authority Children Act meeting should not be construed as 'communicating with another party' when parents are participants at the meeting.
A local authority solicitor attending a local authority Children Act meeting may fall foul of these regulatory provisions if they were to listen to the discussion at a meeting in which parents are participating but are not legally represented and then were to use the knowledge of that discussion to advantage in the cross-examination of a parent in any subsequent court proceedings.
2 Local authority Children Act meetings
Local authority Children Act meetings are a key part of the local authority's statutory arrangements to progress care planning in children's cases.
Detailed guidance on these arrangements is contained in the guidance on court orders and pre-proceedings for local authorities. Additional guidance and related regulations can be located on the Department for Education website. Local authorities should comply with statutory guidance when exercising these functions, unless local circumstances indicate exceptional reasons that justify a variation.
If you attend local authority Children Act meetings or deal with work that brings you into contact with child protection investigations, you should familiarise yourself with the local authority's own procedures.
The Children Act 1989 and its accompanying guidance and regulations place strong emphasis on the need for the local authority to work in partnership with family members, particularly parents and children, and to encourage and facilitate the involvement of parents and children in all stages of planning and decision-making affecting children.
It is for each local authority's local Safeguarding Children Board to agree a policy on the involvement of children and parents in Child Protection Conferences (CPCs), and for the conference chair to decide the implementation of that policy in each individual case.
The purpose of a Local Authority Children Act meeting is to share information about the care of the child, the child's need for protection and to plan for future care. It is outside the remit of the meeting to come to a conclusion on any allegations of abuse against the parents but such accusations are relevant to consider when formulating a care plan to meet the needs of the child.
3 The role of lawyers in local authority Children Act meetings
3.1 If you are representing the local authority
If you are employed by a local authority, you will be called upon to advise as well as to act on behalf of their local authority as the client in care proceedings. One particular function will be to advise the authority on whether the criteria for initiating proceedings under the Children Act 1989 have been met.
As a local authority solicitor you also have a specific function in relation to CPCs. The purpose and how a CPC should work can be found on page 48 of Working Together to Safeguard Children, a guide to inter-agency working to safeguard and promote the welfare of children (2015).
In this context, your attendance may be necessary to offer expert advice to the CPC on any legal issues which may arise, but not to be a full participant.
You should not address substantive questions about the matter under consideration directly to parents, as this could well mean asking questions of another solicitor's client without their permission; nor should you ask questions which should more appropriately be asked in court proceedings of a lay participant without their solicitor's consent.
Questions directed to other participants in the CPC will normally be limited to prompting an expansion or clarification of information or evidence already given.
Legal advice to the local authority on their agency in care planning and on commencing court proceedings should be given outside the CPC.
However, if the CPC is considering making a recommendation to the local authority that care proceedings or other court action should be taken, you may give a view to the conference as to whether the evidence would support such a step being taken.
You may also assist in the decision as to whether the criteria are fulfilled for making a child the subject of a child protection plan, and you may also suggest to the local authority that it consider commencing court proceedings. However, any decision actually to initiate or pursue court proceedings should be made by the local authority outside the CPC.
Care planning is essential to meet the child's future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to bring proceedings to court or alternatively to narrow the issues within care proceedings so as to avoid non-purposeful delay which is in itself harmful to the welfare of the child.
It is important to ensure that inappropriate investigations of abuse are avoided. If you are representing the local authority, you are responsible for advising the meeting to keep within its remit. It is the responsibility of the chair of the meeting to ensure that the meeting does keep within its remit.
It should not be assumed that there will always be a conflict of interest between parents and child, or parents and the local authority, but if it appears to you as the local authority solicitor that, at a meeting where parents are in attendance without their solicitor, there is a need to discuss information which may be in conflict with the parents' interests, you should consider advising the meeting that they must withdraw while this information is discussed.
It is good practice to invite parents' solicitors, or their representatives, to accompany parents to local authority Children Act meetings.
However, even if the parents' solicitor is not invited to attend (or they are unable to attend for other reasons), there should be no question of them objecting to the attendance of the local authority solicitor in order for the local authority solicitor to advise the meeting.
3.2 If you are representing other parties
In order to encourage the participation of children and parents or other relatives in a CPC, Working Together (2015) suggests that parties be accompanied by an advocate, friend or supporter.
That person may be you as a solicitor. If so, it will be incumbent on the chair to clarify your role at the conference, which may vary according to local practices and the circumstances of the case.
As it is not routine for solicitors for parents or family members to attend child protection conferences, it is sensible for any solicitors intending to attend such a conference to notify the chair in advance that they will attend with the client.
Representatives accompanying parents or children to a CPC and to other local authority Children Act meetings should be able to assist their clients to express their views and participate in the meeting, and should (with the chair's permission) be allowed to speak on their behalf.
Care planning is essential to meet the child's future needs, and your involvement could help to reach agreement as to the provision of services and support, which may either reduce the need to commence court or alternatively to narrow the issues within care proceedings so as to avoid delay which is in itself harmful to the welfare of the child.
3.3 If you are representing the child
In advance of any local authority Children Act meeting you should discuss with the Children's Guardian, and with the child if appropriate, who should attend the meeting.
It can be both helpful and important for you, or a representative of your firm, to attend any local authority Children Act meeting, either to accompany the child or to attend on the child's behalf where the child is too young or unwilling to attend. However, the decision as to who should attend, either with or on behalf of the child, will vary according to the circumstances of the case.
If you are to attend you should take instructions on the most appropriate arrangements for the child's future care and protection, in order to discuss these proposals and put them forward, on behalf of the child, at the meeting.
If you cannot attend in person but have agreed to send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, is fully informed of the circumstances of the case, and is able to assist the child or speak on his/her behalf.
3.4 If you are representing the parents or persons with parental responsibility
It is good practice for local authorities to invite you, or a representative of your firm, to accompany parents as a supporter to local authority Children Act meetings and that local authorities should be encouraged to adopt this approach.
This will facilitate a full exchange of information and also avoid the stressful situation of parents having to face a meeting of professionals without any professional assistance themselves.
If you cannot attend in person but instead send a representative of your firm, you must ensure that the representative is knowledgeable in child care law and procedures, and is fully informed of the circumstances of the case.
It is, in any event, important to advise parents of the importance and benefits of their attendance at local authority Children Act meetings and to assist in preparing them for the meeting.
You should first discuss with the client who, if anyone, would be the most appropriate person to accompany them to the meeting (if it is appropriate and possible for someone to attend), and consider what the person's role should be, subject to the agreement of the chair of the meeting.
If court proceedings are a possible outcome or these are already in existence, you should discuss with the client(s) the implications of giving information to the meeting, particularly if there is a possibility that they may later be cross-examined in court.
Where parents are unable to attend the meeting, you should encourage and assist the parents to prepare a statement to be read out at the meeting.
When you attend local authority Children Act meetings your role at the meeting should be outlined by the chair. In appropriate cases this might include clarifying whether or not you can ask questions or raise points on your clients' behalf.
It is often the case that the chair of the meeting will meet parents (and their solicitors) before the meeting starts. Any queries over your role can therefore be dealt with at that stage.
There may be circumstances when it may be inappropriate for both child and parents to be present at the meeting at the same time. It will be for the chair to work out procedures to enable all parties to participate to the fullest and fairest extent.
However, where a young person decides to attend a meeting without being accompanied by a representative, but does not wish to disclose information in front of his or her parents, then it will usually be appropriate for the parents and their representative to withdraw from the meeting to enable the young person to participate.
In some cases, for example, where parents are separated, issues of conflict, competing interests and requests for confidentiality do arise as between parents or relatives attending at local authority Children Act meetings.
It may therefore not be appropriate for those persons and their solicitors to be present together during the meeting. Again, it will be for the chair of the meeting to determine appropriate procedures to enable the fullest and fairest possible participation of those concerned.
4 Exclusion/withdrawal of parents and/or children
Working Together states that 'the decision to exclude a parent or caregiver from the child protection conference rests with the chair of the conference, acting within local Safeguarding Children Board procedures'.
Exclusion may be necessary if the individual concerned is so disruptive as to prevent the business at the meeting being concluded.
Partial withdrawal may be necessary if conflicts of interest exist between various participants or if confidential information needs to be discussed and this may include the giving of legal advice to the local authority.
If a decision is taken to exclude or limit attendance an explanation for this course of action should be given by the conference chair.
5 Further resources
Further information or advice on individual cases can be obtained from the SRA's Professional Ethics Team or from the Law Society's Practice Advice Service.
5.1 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. The Practice Advice Service can be contacted on 020 7320 5797 from 09:00 to 17:00 on weekdays, or by email at firstname.lastname@example.org.
5.2 Professional ethics helpline
The Solicitors Regulation Authority's professional ethics helpline provides advice on conduct issues. Contact them on 0370 606 2577 or at www.sra.org.uk/contact-us.
The Law Society 2015 Good Practice in Child Care Cases. A Guide for Solicitors in Public Law Children Act Proceedings.
This Practice Note has been developed by the Society’s Children Law