Local Practice Note: Ensuring adherence to the Public Law Outline in London
FamilyFamily CourtFamily DivisionPresident of the Family DivisionSir Andrew McFarlanePractice Guidance
“It is now clear to me that there is a need for a radical resetting of the culture within the Family Court so that the system reconnects with the strictures of the PLO and, once again, aims to meet the statutory requirement of completing each public law case within 26 weeks”
Sir Andrew McFarlane,
View from the President’s Chambers, November 2022
The Public Law Outline
1. Section 32(1)(a) of the Children Act 1989 requires the court to draw up a timetable with a view to determining public law proceedings without delay and, in any event, within 26 weeks. It sets out the law the Family Court is required to apply in this regard.
2. Part 12 of the Family Procedure Rules 2010 is a statutory code setting out the legal requirements for the case management of public law proceedings. Again, it sets out the law the Family Court is required to apply in this regard.
3. PD12A (hereafter the PLO) is a self-contained code designed to assist the parties and the court to deal with care proceedings justly and efficiently. It places very considerable demands on all participants, but that is what Parliament has required of the courts for the benefit of the children and families concerned.
4. London remains an outlier in terms of the time it takes to determine care proceedings and the number of hearings it takes to do so. There is a concerning culture of non-compliance with the PLO. This must change. Practitioners can expect the PLO to be applied rigorously in London. This Practice Note, issued with the concurrence of the President of the Family Division, sets out the consequences of this.
Adherence to the FPR 2010
5. The FPR 2010 provide the definitive procedural code for the Family Court and must be adhered to by all parties.
6. In particular, any application within public law proceedings must be made using the correct court form and the correct fee paid before the court will deal with the application. Where the parties seek for the matter to be dealt with on paper, the application form must be accompanied by a draft consent order.
7. Such applications must be made using FPL. It will no longer be acceptable for applications for case management directions, or their variation, to be made by way of email to the court or judge. Emails requesting case management directions or variations thereto, including emails purporting to “update” the court and seeking “guidance” and emails duplicating applications submitted to FPL, will not be dealt with.
Rigorous policing of ‘Urgent’ applications
8. It was, and should be again, very rare for a public law case to require an urgent first hearing. The courts will be rigorous in policing the question of urgency.
9. Where a local authority has the benefit of an interim care order, s.33 of the Children Act 1989 and the associated authorities set out in clear terms what decisions the local authority is able lawfully to take under the interim care order without further involvement of the court. Local authorities must give careful consideration to the scope of their powers under an interim care order before deciding to return the matter to court on a disputed issue.
10. The courts in London will adhere strictly to the local Practice Direction of 28 November 2024 on urgent hearings (see Appendix I). Where an application is not, in fact, demonstrably urgent, the court will refuse to hear it as such, and it will be listed with a fixture in the ordinary way. It is not possible to circumvent the requirements of the local Practice Direction by, for example, requesting the listing of a hearing in a number of days’ time in a case that does not otherwise meet the criteria for urgency set out in the local Practice Direction.
Making cases smaller
11. Cases will be made ‘smaller’ by reducing the number of hearings per case to that prescribed by the PLO and by making ‘every hearing count’.
12. All public law cases in London will now return to the much tighter procedural template required by the PLO. Each case will, save where demonstrably necessary to deal with the case justly, be limited to the three hearings provided for by the PLO.
13. As such, and as required by the PLO, the first hearing will be the Case Management Hearing (CMH), held not before Day 12 and no later than Day 18, with an Advocates’ Meeting to be held no later than 2 days before the CMH. A minute of the Advocates’ Meeting must be provided prior to the CMH.
14. Thereafter, no other hearing should ordinarily be listed following the CMH until the Issues Resolution Hearing (IRH). The final hearing should not be listed prior to the completion of the IRH.
Stopping the “Start Again” culture
15. Adherence to the PLO pre-proceedings process, with the engagement of parents and a thorough assessment exercise following the DfE Guidance and the Public Law Working Group recommendations, is essential. There is little incentive for local authorities to conduct pre-proceedings assessments if the court orders further assessment as a matter of course.
16. Where the court considers that the assessment completed by the local authority during the pre-proceedings stage is sufficient to determine the issues before the court justly, it will not order a further assessment to be undertaken within proceedings unless it can be demonstrated that such further assessment is necessary. Ordinarily, the passage of time will not by itself justify a further assessment as being necessary.
17. With respect to assessments of friends and family, parents are required to identify any family members for assessment at, or within a week of, the CMH. The court will not ordinarily accede to late applications for assessment of friends and family. Each DFJ will agree with their local authorities a clear timeline that will apply to any ‘viability’ or full assessments of connected persons and that timeline will be adhered to.
Ensuring effective Case Management Hearings
18. Proper adherence to the PLO requires a far greater focus on planning and preparation ahead of the CMH and the effective use of the Advocates’ Meeting than occurs at present. It will no longer be acceptable, for example, for the case to be adjourned for a further CMH because the parties have not, at the Advocates’ Meeting, identified the expert sought to be instructed and ascertained the position as to costs and timescale for reporting.
19. Under no circumstances should Advocates’ Meetings take place on the working day before the hearing and, save in exceptional circumstances, hearing advocates should attend the meeting. It is the advocate’s professional responsibility to ensure that they take comprehensive instructions in a timely manner ahead of the Advocate’s Meeting and CMH.
20. Practice Direction documents, including a draft order, must be submitted to the court in accordance with the time limits set out in the PLO. Pressure of work on the part of the advocate and/or solicitor will not be an excuse for failure to submit Practice Direction paperwork by the deadline stipulated in the Practice Direction.
21. The task of the court at a CMH is to ensure the Overriding Objective in FPR 2010 r.1.1 is being met and to determine any case management issues that are in dispute between the parties. The court will have read the Practice Direction documentation. The court is not assisted at the CMH by advocates reciting lists of general “concerns” to the court in the hope that the court will make some comment helpful to their client. Advocates should make clear at the outset of the CMH what case management orders are sought and, in particular, whether there is a dispute as to which orders should be made. If there is a dispute, the court will hear short submissions on the point in issue and give its ruling.
22. Pursuant to s.32(5) of the Children Act 1989, an extension to the 26 week time limit may only be granted if an extension is necessary to enable the court to resolve the proceedings justly. Section s.32(7) provides that such extensions are not to be granted routinely and require specific justification.
Immigration issues and foreign placements
23. London has a high proportion of cases involving jurisdictional and immigration issues and proposed placements abroad. In proceedings involving a foreign national child or a family with a connection to a foreign jurisdiction, a Standard Direction on Issue and Allocation must be made seeking disclosure from the Home Office via Form EX660 of information on the immigration status of the child and the parents. The parties must at the Advocate’s Meeting, and the court must at the CMH, identify any issues arising and give further directions for securing the evidence or expert opinion required to address them. It is not acceptable for issues regarding immigration status to be left to be investigated at the IRH or final hearing and wholly unacceptable for them to be left unresolved at the point a final order is made.
24. Where one of the options for the subject child involves placement abroad, consideration of the legal and practical requirements for facilitating such a placement must start prior to the CMH and be considered at the advocate’s meeting. The court must at the CMH identify any issues arising and give directions for securing the evidence or expert opinion required to address those issues. It is the responsibility of all legal representatives to familiarise themselves with the legal principles governing placement abroad including, where they apply, the requirements of the international Conventions to which the United Kingdom is a party. Where necessary, legal advice from specialist counsel should be taken. Again, it is not acceptable for these issues to be left to be investigated at the IRH or final hearing.
Limiting expert evidence
25.The strict test for whether the court requires expert evidence to determine proceedings is clear and well established.
26. The court will only permit the instruction of an expert where it is demonstrated to the court that to do so is ‘necessary to assist the court to resolve the proceedings justly’. Permission to instruct an expert will not be given on the basis that such evidence is desirable or helpful.
27. The fact that all parties agree that a particular expert is necessary will not automatically lead to permission being given for that expert to be instructed. The question of whether expert evidence is ‘necessary’ is a matter for the court.
28. FPR 2010 r.25.10 provides a comprehensive framework for written questions to be put to expert witnesses. FPR 2010 r.25.9(2) stipulates that the court will not direct the attendance of the expert at a final hearing unless it is necessary to do so in the interests of justice. It is incumbent on any party seeking to cross-examine an expert to make an application for the court to direct the attendance of the expert. By reference to the terms of FPR 2010 r.25.9, a direction for the attendance of the expert at the final hearing will be an exceptional course.
Effective Issues Resolution Hearings
29. The task of the court at the IRH is to resolve and narrow issues, with a view to determining the proceedings at the IRH. The IRH is not a pre-trial review. It is essential that at the IRH the court identifies the key issues (if any) to be determined, considers whether the IRH can be used as a final hearing and, crucially, resolves or narrows the issues by hearing evidence. Only where issues remain will the court move to determine the scope of the final hearing and give case management directions. The IRH should be listed with a time estimate of at least 2 hours. A draft witness template with completed dates and timings must be provided.
Limiting care proceedings to their proper statutory scope
30. In order to determine the care proceedings, the court does not need to determine every issue between the parties at IRH or final hearing and must not be asked to do so. For example, ordinarily, it is no part of the court’s task to provide a narrative for the child by making findings of fact where those findings are not required in order to determine the case.
31. By reference to the express terms of s.31 of the Children Act 1989, the court will limit its consideration to the following issues:
(a) whether the s 31 threshold criteria are satisfied;
(b) if so, consideration of the nature of the permanence provisions in the care plan;
(c) the arrangements for contact; and
(d) what order, having regarding to s.1 of the Children Act 1989, should be made.
32. The court is not required to consider any aspect of the care plan other than the permanence provisions. In the circumstances, the court will limit its consideration of the care plan to those provisions and the question of contact.
Attendance at hearings
33. The advantages of attended hearings, where all parties are present at court to engage in discussion and robust case management are well established. Whilst the court will continue to have a discretion, exceptionally, to list the CMH as a remote hearing in an appropriate case, the IRH and any Final Hearing will always proceed as an attended hearing and trial advocates must attend the IRH.
34. Any application for a CMH that has been listed as an attended hearing to instead be conducted remotely, or for one or more parties to attend remotely at a CMH that has been listed as an attended hearing, must be made by C2 application and a fee paid. Requests for remote attendance made by email will not be accepted and will not be dealt with.
35. The Children’s Guardian must attend the IRH. Any application made, exceptionally, to excuse the attendance of the Children’s Guardian must be made by way of Form C2 and the required fee paid. Requests made by email will not be accepted and will not be dealt with.
Controlling the use of Intermediaries
36. Intermediaries should only be appointed by the court where there is a compelling reason to do so and not simply because the process would be improved or made easier. It will be exceptionally rare for the court to appoint an intermediary for the whole final hearing. It is not appropriate for intermediaries to be appointed just in case they may be required.
37. In deciding whether to appoint an intermediary, the court will have regard to the facts and issues in the case, including factual complexity, legal and procedural difficulty, and length, and to whether there are other adaptions that will permit effective participation without the need for an intermediary. All advocates should be familiar with the Advocates’ Gateway and the advice on how to help vulnerable parties and witnesses understand and participate in the proceedings. An expert recommendation for an intermediary is not determinative. It will be unusual for the case to be adjourned for a lack of intermediary.
Default on Case Management Directions
38. Pursuant to FPR 2010 r 4.5(3), the time limits specified in a case management order may not be extended by agreement between the parties and the court will not simply accept a consent order lodged by the parties seeking to re-timetable proceedings. If re-timetabling is sought, a C2 application must be issued. It is not acceptable for parties to wait for the next listed hearing before addressing any failure to comply with the existing case management timetable. It remains the duty of all parties to bring to the attention of the court any default with respect to the case management timetable and to make an application for relief from sanctions prior to the default taking place.
39. Where a hearing is rendered ineffective due to a failure by a party or parties to make a timely application for relief from sanction prior to default, the court may give consideration to making a costs order or disallowing the fees of solicitors and/or counsel for that hearing, pursuant to FPR 2010 r4.5(2). Non-compliance with case management orders may be regarded by the court as professional misconduct (Re W (A Child)(Adoption Order: Leave to Oppose); Re H (A Child)(Adoption Order)(Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 FLR 1266).
40. The family panel justices and family judges have the option of listing a non-compliance hearing in a compliance list where there has been a failure to comply with the court timetable. The precise format of a compliance hearing will be for each DFJ to decide. However, in broad terms, a non-compliance hearing will be an attended hearing at which the relevant party will be required to explain why the relevant court order has not been complied with, and to explain what steps have been taken to mitigate the impact of such default.
Mr Justice MacDonald
Family Presiding Judge for London
28 November 2024
- The Local Practice Note and appendix (included in document) can be read below.