‘More than half of urgent care hearings in England in 2024-25 were for newborns, where mothers had to attend court within days of giving birth or even potentially on the same day.’ –
– according to a BBC report in October. The report mentioned that new guidance was soon to be issued to try to reduce this happening.
The thought of a new mother having to go to court to try to keep her child is horrific.
The context is that where local authorities have grounds to believe a baby will be at risk of significant harm, they can’t issue a court application before the baby is born and they shouldn’t try to coerce a new mother into agreeing a ‘voluntary’ care (section 20 Children Act 1989/section 76 Social Services and Wellbeing (Wales) Act 2014). This leaves local authorities too often having to address the risks by hastily applying to court for a short-notice hearing.
Research that began in 2018 under the Nuffield FJO umbrella, ‘Born into Care’, has highlighted the potential unfairness to parents of having to face court proceedings in these circumstances. A consultation was issued in February, and the researchers commented:
Such developments are hugely welcomed as they represent a substantive shift towards greater procedural fairness for mothers in particular, immediately following birth. Where parents have a longer window to access legal representation and prepare for court, this constitutes a fairer, more transparent legal process’
Local authorities and Cafcass have also expressed concerns about how fair such urgent applications are for families and the level of pressure they put social workers under.
A new Protocol and Guidance were launched by the President of the Family Division on 4th November.
What will change?
The protocol
This is a four-page document that sets out each step to be taken by health and welfare services in England and in Wales (some processes and terminology differ) where a baby might be born into a situation of risk.
Support and a family group conference should be offered early in the pregnancy.
A pre-birth/parenting assessment will be completed by the 30th week of the pregnancy. This will include evidence of the support and early help being offered to the parent/s.
If it appears that a care application will be made, the PLO pre-proceedings process will begin as early as possible.
Solicitors instructed by parents under the PLO will be expected to notify the local authority of any potential alternative family and friends carers for the child.
An updated assessment and care plan will be produced by week 36. This assessment must include a structured analysis of the necessity and proportionality of separation at birth, where this is sought. Cafcass will be notified of the assessment and plan.
A pre-proceedings meeting will be held in Week 36 to be attended by the parents and their solicitors. Discussions will include how the court hearing will work. Parents will be offered the alternative of remote attendance from the hospital, with their solicitor present.
An application for a care order should be made promptly after the birth and not await the clinical decision on when the child is medically discharged.
Guidance on short notice applications
This is also a four-page document. It’s part of allocation and gatekeeping criteria for courts and tells courts and lawyers how to schedule a short notice application and what the local authority needs to upload with their application form to justify a hearing being held any earlier than the usual 12-18 days after issue. This is ‘standard notice’. A hearing requested within five days is ‘short notice’. An application for a same day hearing should be ‘extremely rare’ and would probably be better dealt with by way of an emergency protection order, if a child was in immediate danger. There is an out-of-hours business service to assist local authorities to meet the strict deadlines.
This guidance applies to all short notice care applications whatever the child’s age. It does however encourage all courts to use the Newborn Protocol. The link is there because of the concerns about the high numbers of short notice applications that are for babies.
Data on the use of short term hearings will be collated for each court centre, so we should eventually have some information about the effectiveness of the new protocol and guidance.
Image: photo by Stephanie Pratt at Wikimedia Commons
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