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7.6 Protocol Between Independent Reviewing Officer and Children’s Guardians

SCOPE OF THIS CHAPTER

This protocol is between Nottinghamshire and Nottingham City Independent Reviewing Services and CAFCASS. The protocol aims to ensure that there is closer liaison between IROs (Independent Reviewing Officers) and CAFCASS following the implementation of the IRO Handbook which highlighted specific areas where the two parties will work in conjunction.


Contents

  1. Purpose of Protocol

    Appendix 1: CAFCASS Practice note 2011: CAFCASS and the work of Independent Reviewing Officers the effect of Therapy on the Legal Process

    Appendix 2 : IRO Handbook - Chapter 8. CAFCASS


1. Purpose of Protocol

The implementation of the IRO Handbook (Statutory guidance for Independent Reviewing Officers and Local Authorities on their functions in relation to case management and review for Looked After Children) has identified two distinct areas in which the IRO will work in conjunction with CAFCASS:

  • As part of family proceedings when a child is Looked After; and
  • When an IRO makes a referral to CAFCASS (this process is addressed within the IRO Dispute Resolution Process)

This document has been compiled by Nottinghamshire and Nottingham city Independent Reviewing Services and CAFCASS. The purpose of the document is to ensure that there is closer liaison between IROs (Independent Reviewing Officers) and Children's Guardians and to ensure relevant information about Care Plans for Looked After Children are shared and issues addressed.

  1. On receipt of an application from the Local Authority, a representative from CAFCASS will make contact with IRO admin and ascertain the name of the designated IRO. CAFCASS will also advise IRO admin of the name of the allocated Guardian, in order that this information can be shared with the relevant allocated IRO;
  2. The IRO and Children's Guardian will establish contact with each other and consider what communication is necessary in order to promote the best possible care planning process for each child. The Guardian will carry out their own assessment of the Local Authority's Care Plan and should discuss with the IRO any concerns they may have about the details of the Plan;
  3. In the event that the Children's Guardian is appointed prior to the first Looked After review, attendance at the initial review should be considered as an opportunity to establish contact. The name of the Guardian will have been supplied when the initial contact was made with the IRO service prior to the first directions appointment at court and contact should be made with the Guardian by the allocated IRO when the date of the initial LAC review is known;
  4. The Children's Guardian should be advised of each review meeting and invited where appropriate. Children's Guardian's to receive an invitation to all relevant LAC reviews
  5. Children's Guardian to receive a copy of each relevant review record. The Independent Reviewing Service will need to liaise with the Local Authority Legal Department to ensure that this requirement is placed on record as per the IRO Handbook (section 8.4);
  6. The IRO should ensure that discussions take place with the Guardian. The IRO and the Guardian should discuss and agree how often and in what manner these should occur. Discussions can include issues such as:
    • The wishes and feelings of the child;
    • The current Care Plan;
    • Whether details of the Care Plan are subject to a formal dispute resolution process;
    • Any complaints received about the case;
    • Any issues raised in court in relation to the implementation of the Care Plan (see section 8.5 of the IRO Handbook).
  7. Prior to the Issues Resolution Hearing, the Local Authority should inform the court of any dispute between the Local Authority and IRO about the plan for the child and any issues subject to the dispute resolution process;
  8. In all cases where the child is to remain Looked After, following the completion of proceedings, there should be a final discussion and any outstanding issues should be identified and kept under review;
  9. The content of discussions between the Children's Guardian and IRO should be recorded on the child's case record;
  10. In all cases where the child remains looked after, the Children's Guardian will confirm that all relevant documents have been forwarded to the IRO, these being:
    • Section 31A Care Plan;
    • Children's Guardian report;
    • Copy of the final order;
    • Outline of contact arrangements (if not covered in the Care Plan).
  11. This Protocol will be reviewed alongside any issues arising from the Dispute Resolution process at IRO/CAFCASS link meetings scheduled on a 6 monthly basis.


Appendix 1: CAFCASS Practice note 2011: CAFCASS and the work of Independent Reviewing Officers the effect of Therapy on the Legal Process

1. Introduction

1.1 The purpose of this Practice Note is to explain the functions and duties of CAFCASS(1) in relation to cases that involve Independent Reviewing Officers ('IROs'). There are two instances when CAFCASS practitioners come into contact with IROs: as part of family proceedings when a child is looked after or when a referral is made in accordance with section 25 B (3) (a) Children Act 1989. Guidance on what to do in the former is detailed in section 2 and for the latter in section 3 below.
1.2 This replaces the previous CAFCASS Practice Note, dated May 2007.
1.3 This Practice Note applies to CAFCASS in England. It is issued for CAFCASS personnel (including self-employed contractors). It will be of interest to IROs, Local Authorities and other relevant professionals but does not replace or contradict in any way the DCSF guidance. It will be reviewed in 2011 and annually thereafter.
1.4 Separate arrangements apply in Wales. Enquiries relating to Wales should be directed to: the Social Care Team, Legal Services, National Assembly for Wales, Cathays Park, Cardiff CF10 3NQ, telephone 02920 826813.

 

References

1.5

The key regulations and guidance are:

  1. The Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004 ("the CAFCASS Regulations");
  2. Statutory guidance for IROs and Local Authorities on their functions in relation to care management and review for looked after children (known as the IRO Handbook);
  3. Care Planning, Placement and Case Review (England) Regulations 2010;
  4. The Arrangements for Placement of Children by Voluntary Organisations and others (England) Regulations 2011.

2. IROs and CAFCASS in Care Proceedings

2.1

IROs monitor the performance by Local Authorities of their functions in relation to children who are looked after by them. The regulations in "d" (above) confirm that voluntary organisations and private children's homes will also have to appoint IROs to monitor their functions in relation children placed with them. Because IROs work with all looked after children, some of their work will be with children who are the subject of current care proceedings or placement proceedings. These children will also have a CAFCASS practitioner, appointed to act as children's guardian. In these cases, both the children's guardian and the IRO will need to consider what communication is necessary in order to promote the best possible care planning process for this individual child. As a minimum, the children's guardian will:

  1. Identify who is the named IRO within the Local Authority, with responsibility for the child;
  2. Contact the IRO and provide the IRO with the children's guardian's name and contact details;
  3. Read copies of all review documentation;
  4. Consult with the IRO as part of the on-going analysis and ascertain whether the IRO has any concerns about the care planning process in this case. For example: where one exists, have any stages of the local dispute resolution process been triggered, or have any complaints or representations been received about the child's case?
  5. Ensure they are informed of review meetings and be aware of any planning meeting that take place and liaise with the IRO following such meetings to discuss any decisions that are made. The IRO will alert the children's guardian to any issues that arise in planning and review meetings;
  6. Liaise with the IRO if appropriate on the wishes of child, the care plan, and issues which may have been raised at court and ensure that there is an independent assessment of the child's best interests.
2.2 In all cases where the child is expected to remain looked after following proceedings, the children's guardian should confirm that all the relevant documents have been forwarded to the IRO.
2.3 In all cases where the child remains looked after following proceedings, the children's guardian should have a final discussion with the IRO about the case with a view to identifying any outstanding issues on particular matters that should be kept under review. It will be important that this is part of the closing of cases by the children's guardian and not a drift into extended involvement. (Practitioners should refer to the CAFCASS Safeguarding Framework paragraph 2.55.)

3. Referrals to CAFCASS

3.1 Section 25 B (3) (a) of the Children Act 1989 and DCSF guidance states that the IRO should refer the case of any looked after child to CAFCASS where the IRO considers it appropriate to do so. The IRO must consider the impact on the child of a referral and make a decision based on the timetable for the child. There will be some cases where there will be time available to pursue the full dispute resolution process but this may not always be the case.
3.2 A CAFCASS lawyer is on duty every working day and is available to give guidance (but not legal advice) to IROs about the matters dealt with in this Practice Note. (See paragraph 5.1 below for contact details). Unless there are overriding child protection concerns, CAFCASS Legal will instigate no action based on informal telephone discussions unless requested to do so by the IRO. Any record will remain confidential unless and until the IRO makes a formal referral to CAFCASS. If a formal referral is made, the record will be shared with the relevant CAFCASS practitioner as part of the case.
3.3 A CAFCASS practitioner is only authorised to bring judicial review proceedings or free standing applications under the Human Rights Act 1998 by virtue of section 25 B(3)(a) of the Children Act 1989 and the supporting regulations referred to above.
3.4 CAFCASS may only take such action against Local Authorities on referral from an IRO in accordance with the CAFCASS Regulations and the IRO Regulations, or the Adoption Agencies Regulations. Other interested parties concerned about the actions of Local Authorities should continue to use the established procedures to make their concerns known to the Local Authority. They cannot refer cases directly to CAFCASS.

 

Responsibility for Cases in CAFCASS

3.5 All cases referred in accordance with this Practice Note should be sent to CAFCASS Legal whose contact details can be found in paragraph 5.1 below. Some examples of the types of cases that may be suitable for referral can be found in the Annex to this Practice Note.
3.6 On receipt of a referral, CAFCASS Legal will immediately refer the case either to the local CAFCASS manager for allocation to a practitioner who has previously been involved or to the CAFCASS High Court Team for allocation. CAFCASS Legal will also notify the Local Authority Legal Department.

 

Documentation

3.7 The documents to be sent to CAFCASS Legal are set out in paragraph 8.15 of the IRO Handbook.
3.8 It is not necessary to obtain permission of the court to disclose documents to CAFCASS. CAFCASS will need the court's permission to disclose any documents filed in family proceedings in connection with judicial review or freestanding Human Rights proceedings.
3.9 Where the documentation is for any reason not complete, the referral should still be made without further delay so that the CAFCASS practitioner can begin his or her enquiries, but the IRO should stipulate a date when the documentation will be provided.
3.10 It is critically important that where the child is of sufficient age and understanding, the IRO conveys the child's wishes and feelings, including his or her views in relation to potential court proceedings.
3.11

In addition to the documentation listed at paragraph 8.15 of the IRO Handbook, the following documentation should be sent to CAFCASS:

  1. Names of relevant staff and contact details in relation to any other agencies involved such as the local education authority or an NHS Trust;
  2. Relevant information about diversity issues for this child and family, including whether the child or family members will need additional assistance to aid communication.

 

Procedure

3.12

The CAFCASS practitioner will gather information through the following processes, which are not set out in any order of timescale or importance.

  1. Reading the documentation provided by the IRO, any information held by CAFCASS, and any further documentation that may be requested by the practitioner;
  2. Meeting the child if appropriate;
  3. Discussing the case with the IRO;
  4. Discussions with any relevant person including staff from the Local Authority. If such discussions are to take place with persons who were not party to any previous family proceedings, the lawyer from CAFCASS Legal will advise whether permission of the court is required;
  5. Discussion with the previous children's guardian, where he or she is not the same person now allocated to the case;
  6. Discussion with people with Parental Responsibility and wider family members (where appropriate). Again, if such discussions are to take place with persons who were not party to any previous family proceedings, the lawyer from CAFCASS Legal will advise the practitioner on whether permission of the court is required
3.13 Whether or not proceedings have been issued, CAFCASS may seek to settle the case with use of negotiation or mediation. The aim is to ensure that the Local Authority or other responsible authority (as defined in The Arrangements for Placement of Children by Voluntary Organisations and others (England) Regulations 2011) makes good any breach of its duties towards the child and/or any defects in the implementation of the care plan.
3.14

In consultation with his or her manager and with CAFCASS Legal, the CAFCASS practitioner will seek, within two weeks of the referral, to make decisions about the most appropriate action to take, based on the following questions:

  1. Is there evidence that the child's human rights are being compromised by the actions (or inaction) of the Local Authority or the responsible authority?
  2. If so, are there further opportunities for dispute resolution? By whom should this be initiated? By the IRO, by the family or by CAFCASS?
  3. Could the problem be solved by other proceedings (for example an application under the Children Act for contact) and, if so, should CAFCASS initiate these? Should the child be encouraged to initiate court proceedings?
  4. Are judicial review proceedings necessary or should there be a freestanding human rights application?
  5. What are the ascertainable wishes and feelings of the child.
3.15 Where it is not possible to submit a written report with a decision on the action to be taken within the two-week period, the CAFCASS practitioner will write to the persons included in the list at paragraph 3.22 below explaining the reasons for delay. A report will be provided as soon as reasonably practicable thereafter.
3.16 If further action is needed, CAFCASS will decide who should take that action. The following questions should be considered: where there is a need for court proceedings, is the child able and willing to instruct lawyers to start proceedings? Or is there an adult able and willing to initiate proceedings? Only if neither of these applies will the CAFCASS practitioner initiate proceedings.

 

Involving the Child

3.17

The CAFCASS practitioner will involve the child in the case to the extent that is appropriate in the light of his or her age, understanding, needs and circumstances and if appropriate will:

  1. Meet with the child to ascertain his or her views about his or her case, the role of the Local Authority (or "responsible authority") and the referral to CAFCASS;
  2. Provide information to ensure that he or she knows how to contact CAFCASS;
  3. Respond promptly to any representations from the child. If at any time the child wants to take over the conduct of the case from CAFCASS and is competent to do so, the CAFCASS practitioner will give as much help as possible including supplying a list of solicitors whom the child might wish to instruct.

 

Legal Proceedings

3.18 If, on referral from an IRO and having consulted with his or her manager and taken legal advice, the CAFCASS practitioner decides it is necessary to bring civil proceedings such as judicial review or a freestanding application under the Human Rights Act 1998, he or she will take steps to secure appointment as the child's litigation friend.
3.19 The CAFCASS practitioner must seek to start any such civil proceedings within six weeks of receipt of the referral. In some cases, the timetable will need to be much shorter due to the urgent nature of the concern. Even after proceedings have been issued, the CAFCASS practitioner will continue to try to settle the case.

 

Timetabling and Sharing Information

3.20 The CAFCASS practitioner will at all times have in mind the principle that delay may be harmful to the child and will have regard to relevant limitation periods. He or she will write a report detailing with reasons the course of action to be taken in the case including, where appropriate, reasons for not taking any action requested by the IRO. The practitioner will seek to prepare the report within two weeks of the referral3.At the conclusion of the case whether by judgment of the court or after the case has been settled, the practitioner will provide a further report within six weeks of judgment or settlement. That report will include the reasons for the decision to bring proceedings to an end, the reason for any delay in the time limits, the detail of any settlement and any other comments or recommendations
3.21

The reports will be sent to the following people:

  1. The child, depending on his or her level of understanding;
  2. The IRO;
  3. The Chief Executive of the Local Authority and the Director of Children's Services or equivalent;
  4. The Chief Executive or equivalent of the voluntary organisation of private children's home;
  5. The social worker and their Team Manager with day-to-day responsibility for the case;
  6. Any other person the officer of the Service considers should be informed. The officer of the Service will take advice from CAFCASS Legal for instance in relation to persons with parental responsibility.

4. Cases which are not appropriate for a referral to CAFCASS

4.1

The following are situations where a referral to CAFCASS will not be appropriate

  1. Where the child is of sufficient age and understanding to bring proceedings himself or herself without the need for an adult to act on his or her behalf. In such cases, the IRO should ensure that the child has access to a suitably experienced solicitor and an explanation about legal aid;
  2. Where a suitable adult is able and willing to bring the proceedings on behalf of a child;
  3. Where the timescales for the child permit the full dispute resolution procedures to be exhausted. This will depend on the particular circumstances of the case. For example, an immediate placement issue might require curtailment of the process while a dispute about an educational placement provision planned for the following school year would not. Some situations (for example, an issue about sibling contact) could be resolved by proceedings under the Children Act. It is not appropriate to pursue non-family litigation such as a judicial review if a remedy may be available in current or new Children Act proceedings.
4.2 CAFCASS will not deal with compensation claims, which will continue to be the responsibility of the Official Solicitor.
4.3 The Official Solicitor conducts a wide range of civil litigation on behalf of children. CAFCASS Legal will pass on to the Official Solicitor any cases that are felt more appropriate for him. (See the Annex to this Practice Note - to follow.) IROs should therefore refer any suitable cases directly to the Official Solicitor whose contact details can be found in paragraph 5.2 below. In any case, where it is anticipated that such a referral may be warranted, the IRO should ask for the permission of the court to disclose papers to the Official Solicitor.
4.4 In some cases, it may be unclear which course of action to take. Lawyers in CAFCASS Legal and the Official Solicitor's Office are available for discussion or to give guidance to IROs about potential referrals

5. Useful contact details

 

CAFCASS Legal address is:
6th Floor, Sanctuary Buildings
Great Smith Street
London SW1P 3BT
DX: 157050 Westminster

Tel no: 08444 353 3350 Fax no: 0844 353 3395

The Official Solicitor's address is:
The Official Solicitor and Public Trustee
81 Chancery Lane
London, WC2A 1DD
DX: 0012 London

Tel No: 020 7911 7121 Fax No: 020 7911 7105

(1) In this practice note, ‘CAFCASS practitioner’ is used to represent the statutory roles of ”officer of the Service” as defined in the Criminal Justice and Court Services Act 2000 and “officer of the Children and Family Court Advisory and Support Service” as referred to in the Review of Children’s Cases (Amendment) (England) Regulations 2004.


Appendix 2 : IRO Handbook - Chapter 8. CAFCASS

8.1

There are two distinct areas in which the IRO will work in conjunction with CAFCASS:

  • As part of family proceedings when a child is Looked After, and
  • When an IRO makes a referral to CAFCASS

Family Proceedings

8.2

In relation to family proceedings, all children who are subject to care proceedings will have a children's guardian, appointed by the court and an IRO, appointed by the Local Authority. The Public Law Outline refers to the "timetable for the child". The IRO should feel confident that s/he is being kept fully informed of the progress of the child's case, during and at the conclusion of the proceedings. This will involve:

  • Close liaison with the children's guardian; and
  • The legal department for the Local Authority providing the IRO with all relevant court documents and having a system in place to do so in a timely manner.
8.3

The IRO will need to consider together with the children's guardian what communication is necessary in order to promote the best possible care planning process for each child. As soon as the IRO has been appointed to a child subject to proceedings:

  • The IRO service should provide the legal department for the Local Authority with the name of the IRO and with his/her contact details;
  • The legal department for the Local Authority should advise the court of the name of the IRO and of his/her contact details.
8.4

The legal department of the Local Authority should have a system in place to:

  • Pass on the name of and contact details of the children's guardian, once appointed, to the IRO; and
  • Provide copies of all relevant court documents to the IRO, including court orders and directions, the reports of experts and the reports of the children's guardian, within five working days of receipt of them.
8.5

Once the children's guardian has been appointed, the IRO and children's guardian should establish communication with each other. In the event that the children's guardian has been appointed and is able to attend the first review, this may be an opportunity to establish the contact. However, if the appointment is not made until after the first review, it will be important for the communication to be established as soon as possible following the appointment. In addition:

  • The children's guardian should be advised of each review meeting and invited, where appropriate;
  • Each Local Authority should have a system in place to ensure that the legal department of the Local Authority and the children's guardian receive a copy of each review record;
  • The record of each review that takes place during the proceedings should be submitted to court;
  • The IRO should ensure that s/he is in discussion with the children's guardian at intervals, as is appropriate for each child's case and that the topics of discussion include:
    • The wishes and feelings of the child;
    • The current Care Plan;
    • Whether details of the Care Plan are subject to a formal dispute resolution process and if so details of this;
    • Any complaints that have been received about the case; and
    • Any issues raised in court in relation to the implementation of the current Care Plan.
8.6 Prior to the Issues Resolution Hearing, the Local Authority should inform the court of any dispute between the Local Authority and the IRO about the plan for the child and of any issues subject to the local dispute resolution process.
8.7 In all cases where the child is to remain Looked After, following the completion of the proceedings, the IRO and the children's guardian should have a final discussion about the child's case with a view to identifying any outstanding issues or particular matters that should be kept under review.
8.8 The content of discussions between the children's guardian and IRO should be recorded on the child's case record.

Referral to CAFCASS

8.9 Since 2002 IROs have had the authority to refer the case of any looked after child to CAFCASS (under Section 118, 2002 Act) if they are of the view that the child's human rights have been breached and all attempts to resolve the matter have been exhausted. The scope for such referrals is now extended.
8.10

The IRO now has the authority to refer a case to CAFCASS "if the IRO considers it appropriate to do so" (section 25B (3), 1989 Act) The IRO will encounter a wide range of situations in which there are concerns about the plan for the child or the service that is being provided. In most cases, it will be possible to address these through:

  • Dialogue with the Local Authority, including access to the dispute resolution procedure;
  • Use of the complaints procedure, either by the child directly or by an adult who is authorised to act on the child's behalf; and/or
  • Application to the court for an order under the 1989 Act, either by the child or by an appropriate adult who is able and willing to act.
8.11 When considering whether to make a referral to CAFCASS, the IRO should consider the impact that a referral would have for the child. In some cases, there will be time available first to pursue the full dispute resolution procedure within the Local Authority (for example where the dispute relates to educational provision for the next academic year and it is currently still the autumn term). In other situations, the matter will be of sufficient urgency that the dispute resolution process needs to be curtailed (for example where there is a plan to change the child's residential placement within a matter of weeks). It is the responsibility of the IRO to make the decision about whether and when a referral is necessary, based on the timetable for the child.
8.12 As part of any dispute resolution procedure and prior to making a referral, the IRO should notify a nominated Local Authority senior officer (to be identified in the Local Authority dispute resolution protocol) that a referral to CAFCASS is being considered. Where the IRO has reached a decision to curtail the dispute resolution process to meet the needs of the child, the IRO should explain the reasons for this to the senior officer.
8.13

When considering whether to make a referral, the IRO should have access to management advice and support in addition to independent legal advice where necessary. CAFCASS Legal operates a duty helpline, which is available to IROs for the discussion of possible referrals. The lawyers at CAFCASS Legal cannot give IROs legal advice, but will discuss with the IRO whether any other steps can be taken before a referral is made.

  1. The IRO can make a referral to CAFCASS by contacting CAFCASS Legal initially by telephone but the referral should always be confirmed in writing to the duty lawyer who will provide contact details to the IRO. The CAFCASS Legal duty helpline telephone number is available from the CAFCASS National Office, the contact details for which can be found on cafcass website
8.14

The information listed below should accompany a referral to CAFCASS.

  • Copies of any final care order and the final care plan filed in the proceedings;
  • The report of the children's guardian immediately preceding the making of any care order;
  • The review records from the preceding 12 months;
  • A report by the IRO explaining why the matter is being referred at this stage and setting out what steps the IRO has taken to resolve the position with the Local Authority;
  • Where the child is of sufficient age and understanding, a report by the IRO on the child's wishes and feelings, including the child's view in relation to any potential court proceedings;
  • Names and contact details for relevant professionals in relation to children's social care and any other agencies involved, for example another Local Authority or an NHS Trust;
  • Any other relevant documentation including a chronology and statement of issues, a list of important people in the child's life and their relationship and involvement with the child; and information about diversity issues for the child and family including whether the child or family members will need additional assistance to aid communication; and
  • The most recent care plan.
8.15

Once a referral has been made, CAFCASS will enter into final dispute resolution with the Local Authority before proceedings are instituted. Whilst CAFCASS cannot refuse to accept any referral, it is the responsibility of CAFCASS and not the IRO to determine whether a legal remedy should be sought. If the problem is not resolved to the benefit of the child and within the child's timeframe, CAFCASS has the power to initiate the following types of action (under regulation 3 of the Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004)

  • Proceedings under section 7 (1) of the Human Rights Act 1998;
  • Claim for judicial review; and
  • Other proceedings (for example under the 1989 Act).

End