This summary guide is for all practitioners and professionals working with a child and family when there are concerns of child sexual abuse and care proceedings have reached the issues resolution hearing (IH) or final hearing. It explains what happens, how the child may be feeling, and how you can best support the child.
What happens when a judge makes a final decision?
Care proceedings complete when the judge makes a final order – a legally binding decision about who the child should live with and who they should spend time with – or decides not to make a final order. This decision should be made within the statutory 26-week timescale in accordance with the Public Law Outline (PLO).
The final order could be:
- a supervision order
- a care order
- kinship care under a child arrangement order, a care order or a special guardianship order
- a care order and placement order, where adoption is the care plan.
A final order can be made at two points:
- If the parties agree and there are no disputed (or contested issues), the IRH can be used as an early final hearing.
- If there are disputed issues that cannot be resolved at the IRH, a contested final hearing is scheduled.
When a contested final hearing is directed, the IRH is used to:
- narrow the disputed (or contested) issues
- set a date for the final hearing
- give directions for final evidence and statements
- set out a witness template
- set out any special measures.
The final decision
There are four steps to making a final decision. The judge will:
- check to see whether the legal standard of proof has been met – this should be ‘on the balance of probabilities’, not the criminal law threshold of ‘beyond reasonable doubt’
- apply the welfare test to determine what is in the child’s best interests
- apply the proportionality test to ensure their decisions adhere to Article 8 of the European Convention on Human Rights
- scrutinise the final care plan to ensure it considers all realistic and viable options.
Points to remember
The judge’s ability to make a safe and just decision is dependent on the evidence that is presented to them.
The Family Court does not need to wait for any criminal proceedings to complete before making a final decision.
How may the child be feeling?
Children involved in Family Court proceedings often feel vulnerable and anxious about the legal process and its outcomes. Even if a child shows no obvious signs, the emotional impact should not be underestimated.
- Anticipating the final hearing, the child may feel scared, disempowered, worried about the outcome, and apprehensive if required to give evidence.
- The final decision is a major milestone, signalling both an end to uncertainty and the start of a new chapter in the child's life. It may result in significant changes such as returning to parental care, moving to foster care, living with relatives, or being placed for adoption.
- Whatever the outcome, children may feel a complex mix of relief, uncertainty and other emotions, especially if the decision is not what they wanted or if they feel unsafe.
- For children also involved in concurrent criminal proceedings, the sense of finality may be missing as legal involvement continues.
“Listen to me to understand me not to answer or plan for me.”
“Make sure all plans for us are made with us.”
“Court terminology is very confusing. I may not understand what an order is or what it means. Talk to me and make sure I understand what decisions have been made about my life and write clearly about them in my file and how it will affect me”
“Help us understand what happens in family court proceedings, step by step. Check in all the time to make sure that we know what is happening and why.”
“Help us to understand the reasons behind the recommendations that you make and record our thoughts about them in your reports.”
How can you best help the child and their family?
There is much that practitioners and professionals can do to support the child and their family at this time.
The child’s social worker is required to make recommendations to the court about where the child should live and who they should spend time with. It’s essential to weigh up the evidence and develop a care plan that prioritises the child’s best interests.
If facts of child sexual abuse have been found, a decision will need to be made about whether the child’s safety can be assured in the home.
When facts of child sexual abuse have not been found, children’s social care cannot reference sexual abuse in relation to care planning, even if concerns remain. This can have significant implications for planning around who the child should live with and spend time with – and for future safeguarding decisions and resources. Consider how the child’s safety can best be assured.
- Actively involve the child in their care plan, ensuring their voice is evident. Check too whether there is any more information that they would like to share – remember that children almost always talk about sexual abuse gradually, sharing different pieces of information with different people over time as they try to work out who they can trust.
- Reflect on whether the child will be safe if they return home – take a trauma-informed approach, and consider whether the parent(s) will need support to implement a safety plan.
- Where friends and family have been suggested as potential alternative carers, assess their suitability.
- Where the parties fundamentally disagree on the child’s best interests and care plan, follow the practice guidance from Cafcass and ADCS.
All practitioners supporting the child and family should consider making appropriate arrangements around the final decision. Take time to listen and understand what the child needs and who is best placed to help them. In particular:
- Reflect on how final decision around who the child will live with and spend time with may affect the child’s emotional wellbeing, especially if it goes against their wishes. What steps can be taken to support their understanding? What might help them to be more accepting of the decision (if they are not)?
- Think about the impact of the IRH or final hearing on the child’s school life. Would they benefit from having time out from lessons and/or support from a trusted adult in the school environment, for example?
- Do they need help in what to say to others about the change in their circumstances? Support them to find the language and words to talk to others, and reduce the worry these conversations may bring.
- If come into care or remain permanently in care, what will be the impact on their family relationships, friendships, education, and activities such as clubs they attend? How can they be supported to continue doing the things they enjoy, if they want to?
In addition to involving the child in the evidence and care plan’s development (see above), it’s important to engage with them and inform them of what is happening, so that their voice is heard and they remain at the centre of their case. How best to do this will depend on their age, understanding, preferences, and specific needs.
Children (and most parents) won’t understand what an IRH is, why it is important, and what to expect. The social worker and the Children’s Guardian can help them to understand:
- the purpose of the IRH, what decisions could be made, and how they will be made
- what recommendations are being put to the court.
If a final hearing has been directed, tell the child and parents:
- when it will be and what it means for them
- the timetable that has been agreed
- any suggestions or decisions made about how they will participate, and the support available if they will need to give evidence.
When children understand what will happen and what may be decided, they may be more likely to accept the court’s decision.
Whether the child will be giving evidence or not, you can support the child’s participation by:
- checking whether they want to meet the judge or visit the court
- asking the judge to write the child a letter explaining any big decisions that have been made
- supporting the child to writing a letter to the judge.
Interacting with criminal proceedings
Intersecting criminal and family proceedings may be a source of great concern for the child. Remember that:
- Family Court proceedings do not need to pause to allow criminal prosecutions to be completed, as the child’s immediate welfare and safeguarding are a higher priority than establishing anyone’s criminal guilt
- the focus in the Family Court is on establishing the facts on the balance of probabilities (‘it is more likely than not that the harm has occurred’), not ‘beyond reasonable doubt.
The police and the Crown Prosecution Service are not parties to family law proceedings, it is common for police records to be shared with the Family Court for analysis. Likewise, children’s social care are not a party in criminal proceedings but can provide information about the case to the police. However:
- The appropriately redacted text or summary of a judgment given in the Family Court can be included in the files to be examined by the police – but documents relating to Family Court proceedings should not be included in these files. Instead, provide a list of these documents without describing them (e.g. by providing a copy of the redacted court index), so the police and/or the CPS can apply to the Family Court for disclosure.
- Documents relating to Family Court proceedings can be disclosed to a police officer who is part of a dedicated child protection unit and/or is exercising police powers of protection, but only if the disclosure is for the purposes of child protection (not for the purposes of a criminal investigation).
- If documents (e.g. pre-existing medical reports) are lodged at court or used in the Family Court proceedings, and existed before the proceedings commenced, they can be disclosed to the police.
- Material disclosed to the police cannot be further disclosed to any other parties (e.g. the CPS) for the purposes of a criminal investigation, without the Family Court’s express permission.
External links
- Frontline briefing: Care planning for children in proceedings [Research in Practice]
- Practice guidance for local authorities and Cafcass in public law proceedings when the independent advice of the child’s guardian and the assessment by the local authority about the safety and best interests of the child are fundamentally different [Cafcass/ADCS]
- Protocol and good practice model: Disclosure of information in cases of alleged child abuse and linked criminal and care direction hearings [Senior Presiding Judge, President of the Family Division, the Director of Public Prosecutions]
- Guidelines on prosecuting cases of child sexual abuse [Crown Prosecution Service]
- Practice quality standards in public law guided self-supervision and self-assessment for children’s guardians [Cafcass]
- Engaging with and seeing children policy [Cafcass]
- Guidelines in relation to children giving evidence in family proceedings [Family Justice Council]
- Prosecution guidance: Pre-trial therapy [Crown Prosecution Service]