Preparation and conduct of public children proceedings – 7 aspects to consider

Children are not removed from their parents on a whim. Solicitors will most likely become engaged with families within the Public Law Outline process, when the local authority considers that it has exhausted all possible measures to work with the family pursuant to Child In Need plans and Child Protection plans and has become so concerned that court proceedings are now at the forefront of its mind. 

This blog will consider 7 separate aspects of public law children proceedings, setting out some of the considerations which practitioners should have in mind when conducting such proceedings, whether for the local authority, parents or other parties. 

The local authority will initiate the PLO process by sending a PLO letter or ‘letter before proceedings’. This letter will set out details of its concerns surrounding the parents’ care of the child(ren) in question and invite them to a meeting to discuss the matter further. It will also set out how it proposes to work with the family, with a view to supporting the parents to have one final opportunity to demonstrate that changes can be made such that care proceedings may be avoided.

In recent years, the courts have re-emphasised the importance of the PLO process, further to the President of the Family Division Sir Andrew McFarlane’s publication of his ‘View from the President’s Chambers in November 2022’, outlining the need for all involved in public law children cases to ‘reconnect with the core principles of the PLO as set out in Practice Direction 12A to the Family Procedure Rules 2010’.  There is a 26-week deadline to conclude care proceedings but regrettably, successfully concluding cases within that 26-week timeframe is extremely rare. The President emphasised that the PLO process should be seen as a vehicle to ensure cases can be completed within 26 weeks by providing a template for the case management of the proceedings.

The President emphasised that it is essential for local authorities to meaningfully engage with parents within the PLO process and to undertake a thorough assessment exercise. Proceedings should not be issued until all necessary assessments have been conducted, with further assessments only to take place where:

• These are necessary for the determination of the s31 threshold criteria; or
• For consideration of the permanent provisions in the local authority’s final care plan; or
• For considerations as to contact or as to a final welfare assessment outcome.

It is only in very rare cases that care proceedings should be issued ‘urgently’ without the PLO process having been undertaken. It is therefore incumbent upon solicitors who are working within a local authority advising social workers at a legal planning meeting to ask the question about how the local authority plans to undertake its assessment process within PLO. Likewise solicitors who are representing parents should explore whether the period of assessment planned is going to be sufficient and meaningful to allow your clients to achieve the requisite level of change, or whether there ought to be push back in respect of the same.

It is important to consider throughout what the key issues are in any given case. At the outset the local authority will often be working quickly in order to get the case into court with a view to obtaining an emergency protection order or interim care order. It will often include all manner of concerns in the threshold document - such as the parents’ alcohol usage or historic mental health concerns - when the real crux of the case is down to the parents’ ability to meet day-to-day caring tasks. It is evidence pertaining to those matters which the court wants to have sight of early on. The court also wants this evidence to be of a good quality.

The private law case of Mother v Father [2022] EWHC 3107 (Fam) which was before Mrs Justice Lieven in 2022 was one where the principle issue in contention concerned the right of the parties to cross-examine the Cafcass officer. However, there are a number of points arising from the case in terms of the power of the court to control the evidence in any given case. The court emphasised that the basic premise of evidence in a given case is to assist the court in reaching its decision. The court is, therefore, entitled to exercise its powers to restrict evidence where it wishes to do so.

For solicitors, it is important to think practically about strategies to mitigate the risk of harm to the child(ren) in a manner that safeguards their best interests while looking to work with families to maintain the family unit if possible. Local authorities will often approach the court with a care plan which amounts to separation and placement in foster care, even though all manner of other possibilities have yet to be thoroughly explored. Alternatives might include:

• Parent and child foster placements;
• Residential placements;
• Reverse residential placements with staff coming in to work with the family 24 hours a day; or
• An order requiring certain family members or third parties to stay away from the children.

Judges will often refuse to sanction separation in circumstances where they feel that they are being asked to make a decision with a gun to their head. This may lead to an ineffective first hearing and a chaotic start to the case, which then sets the tone for the rest of the proceedings.

Once proceedings have been issued, it is important to ensure the involvement of all relevant parties and ensure they are properly served. This might sound incredibly obvious but one of the main reasons that first hearings are adjourned is because one party hasn’t been served or there’s no proof that they have been served. There are also cases where information surrounding the father’s whereabouts is unknown at the inception of proceedings. Whilst it might eventually become known to the parties, their legal advisors are often not made aware and the matter proceeds to IRH stage at which point you’re left needing to factor in a late assessment for a case that is otherwise trial ready. It is best to keep the matter of parties’ involvement under periodic review.

Parties should consider all possible alternatives to parental separation throughout the proceedings. The leading decision regarding parental separation is Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998. It is worth remembering that even in circumstances where the test for interim separation is met, it is generally seen to be preferable to keep children within the broader family unit if at all possible. If you are representing parents, they should think early on about whoever in their family and friends network would be available and well placed to look after their children, however much they may be reluctant to entertain the idea of being separated from their children.

It is necessary to consider the relevant assessments. The local authority SWET document will set out the local authority’s initial views regarding the necessary assessments in a given case but this is by no means determinative, and the responsibility will lie also with the parents’ and guardians’ representatives to think about the appropriate assessments and the framework for the same. If you are representing a parent with potential learning difficulties then consideration should be given as to how any parenting assessment could be safely conducted – is there a need for a cognitive assessment to inform how the parenting assessment is carried out? And does the assessment need to be carried out under a specialist framework? Practices in this respect have significantly evolved in the last 10 years – previously such assessment reports were being prepared under the PAMS framework, but PAMS has largely been superceded by both the CUBAS and ParentAssess frameworks (both of which seem to be immensely preferable to PAMS).

Costs and timescales are of course highly relevant. In the case of alternative carer assessments, parties should consider the proportionality of delaying proceedings to allow for a full special guardianship order assessment to be undertaken in circumstances where things have really improved with the parents’ care of the children and the local authority care plan is likely to be one of an ongoing supervision order. Similarly if you have an international family who have family members overseas wishing to be assessed, a proportionate decision may need to be taken about going through the overseas assessment process in the family member’s jurisdiction, which is likely to be time-consuming and expensive, against the welfare considerations of potentially keeping the child within their broader family unit and avoiding the making of a Placement Order.

Again, you need to consider throughout any vulnerable characteristics of both the children and the family members. Do you require social workers or assessors to be fluent in a foreign language to converse with the parents? Is the child more likely to engage with a social worker who matches their ethnicity? If the parent has been the subject of domestic abuse then are they more likely to engage with an expert of their own gender? Chances are that the parents’ solicitors working with the clients on a day-to-day basis are far better placed to inform as to these considerations than the barrister meeting the client at court for the first time.

In respect of expert evidence, it is always worth remembering that the test for the use of expert evidence in children proceedings is one of necessity, with section 13(6) of the Children and Family Act stating that the court may give permission only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. Sir James Munby the former President of the Family Division made clear in the case of Re HL [2013] EWCA Civ 655 that what is necessary lies somewhere between ‘indispensable’ and ‘useful’, ‘reasonable’ or ‘desirable’. While this may seem to be a settled principle, anecdotally the courts have taken a significantly stricter approach regarding the test of necessity than in previous years, mindful both of the financial costs to the taxpayer of such assessments in publicly funded work, and also the personal cost to the child of the delay in securing decisions surrounding their permanency through having such assessments undertaken.

In making decisions surrounding the necessity of expert instructions, the court must have regard to the factors referred to in section 13(7), namely:

1. The impact which giving permission would be likely to have on the welfare of the children concerned, including (in the case of assessments requiring the child to be medically or psychiatrically examined or otherwise assessed) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed;
2. The issues to which the expert evidence would relate;
3. The questions which the court would require the expert to answer;
4. What other expert evidence is available (whether obtained before or after the start of proceedings);
5. Whether evidence could be given by another person on the matters on which the expert would give evidence;
6. The impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings;
7. The costs of the expert evidence, and
8. Any matters prescribed by the Family Procedure Rules.

Thinking practically, parties may wish to consider other sources of information which will opine on the matters in question. For example, if consideration is being given to the instruction of an expert psychiatrist to assess a parent, might the parent’s GP or treating psychiatrist be in a position to provide the information? If information is sought as to the psychological issues underlying a party’s offending behaviour, might the children’s social worker or the parent’s domestic abuse support worker be able to offer an opinion? And even if an expert instruction is necessary in principle, is there someone better placed to do the work in terms of costs, timescales and relevant expertise?

The 2025 decision in A Local Authority v X (Attendance of Experts) [2025] EWFC 137 provides guidance regarding the court’s case management powers under Rule 25 of the Family Procedure Rules. The case offers some helpful guidance both on the test of necessity pursuant to s13 of the Children and Families Act, and regarding the importance and necessity of challenging expert evidence and the factors to be considered by the court in allowing expert evidence to be challenged in court.

In respect of the costs of experts, the Amended Legal Aid Agency Guidance surrounding the Remuneration of expert witnesses in family cases was issued in April 2025. The case of Re K & Re S (Legal Aid: Experts’ Fees) [2025] EWFC 100 touched on this. There is a growing problem with experts in that the current Legal Aid Agency rates for their instruction are often insufficient, for example for paediatricians and radiologists. Where prior authority is refused by the Legal Aid Agency for additional amounts, the court and parties then turn to the local authority to cover shortfalls. The recent LAA guidance has made it clear that it is not the intention of the LAA that the local authorities should be required to make up this shortfall, other than in unusual and exceptional circumstances which relate primarily to the complexity of the material or where the material is of such a specialised and unusual nature that only very few experts are available. The court in Re K considers the issue extensively and recommends the use of a suggested form of order depending on the facts of a given case in the circumstances where such a decision is supported.

Threshold can often be a challenging matter for care practitioners, and drafting threshold can be a very tricky exercise. When at court, the following issues are often raised:

• The lack of a direct link between the parents’ conduct and the harm suffered or likely to be suffered by the child. If for example the given parent was found to be drunk and disorderly and spoken to by the police when the child was of out of their care, is there a direct link of risk of harm to the child? It is likely to be dependent on other factors such as the likelihood of a recurrence and whether the child would have been potentially exposed to the parent later that evening in such a manner. In the absence of a direct link to risk to the child threshold may be found to be defective.
• Compliance with the principles in the case of Re A (Applicant for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11 is a significant issue. Often, thresholds are worded in a vague and unspecific manner such that the representatives for the parents don’t know exactly what they are responding to. Threshold allegations should be tightly worded and directly allege what the given parent has done and what the risk of harm is to the child so that they can respond accordingly.
• Often there is a lack of supporting primary evidence to corroborate the allegations set out in the threshold document, particularly where the allegations have originally been made by the children to professional third parties. If you are representing a local authority this may not be a significant issue at the outset of the proceedings where the evidential standard is one of the court having reason to believe that the allegations are true, which is significantly lower than that required to prove the final threshold. However, it can pose significant issues further down the line where there is a significant issue as to whether threshold is likely to be met if the evidence that will be required to prove findings has not been identified and gathered.
• Finally considerations need to be addressed as to the necessity and proportionality of findings. If the local authority’s final care plan is one of a supervision order and the parents contest the history of domestic abuse in their relationship, the local authority representative may need to take a pragmatic view as to whether findings in respect of these matters are to be proven. Is there potential for the parents to reunite and the child to be exposed to the same? Is there a risk of the parent entering another such relationship in the foreseeable future? Is the local authority likely to need to issue further proceedings in respect of another child of either parent? Can threshold be definitely proven on the basis of other concerns?

In respect of evidence, there are various forms of evidence which you may seek to consider for the purposes of informing your client’s respective position on threshold whether you are representing the local authority or the parents. The parties’ own evidence is of course the natural starting point, including the statements of local authority social workers in terms of alleged conduct by the family members; the parents own self-reporting of their actions; and indeed the statement of the other parties involved in proceedings.

Expert evidence will be significant, both in the form of independent experts such as psychiatrists, psychologists and paediatricians, and also drug and alcohol test reports. These forms of evidence are likely to be of particular use if you are representing the local authority given the other party is likely to face more of an uphill challenge in contesting the findings of the same.

Other third party disclosure such as police evidence, medical evidence and school records can be very helpful for the purposes of informing as to the position on threshold.

Finally contact records can also be highly insightful, not just to inform as to the parents’ respective behaviour as may be a matter for the threshold document, but also to inform as to the ongoing welfare considerations with respect to the parents’ learning and development of their parenting skills. While it is often easy to leave contact records as something of a rudimentary, secondary form of evidence, these can often provide you with helpful information.

Adrian is a children law specialist who qualified as a solicitor and worked within the children team at a local authority before transferring to the Bar. He represents local authorities, parents and other parties in litigation. He acts in public and private children proceedings, from the initial ICO or First Appearance, to fact finding hearings, and final hearings. To instruct Adrian, please contact Jay Dorton.