Related proceedings (Back to top)
As a general principle, if further proceedings are issued during a care case, which relate to the same children, the existing care certificate can be amended to cover those related proceedings. See sections 10.20 and 10.21 Lord Chancellor’s Guidance.
10.20 In accordance with paragraph 1(2) of Part 1 to Schedule 1 of the Act, civil legal services may be provided in cases which are being heard as an alternative to, or together with, proceedings in paragraph 1(1). Where these services are being provided with special Children Act 1989 cases these civil legal services will also be non-means tested and an application for an amendment should be made to the special Children Act 1989 certificate where civil legal services are required in these proceedings.
10.21 Proceedings will be “heard together” where they are dealt with together or immediately after the outcome of the principal proceedings as part of the same hearing, including any adjournment (paragraph 1(2)(b) of Part 1 of Schedule 1). An order will be “sought as an alternative” when it is intended to make an order under ss.31, 43, 44, or 45 unnecessary – this will extend to, for example, an application for a s.8 order in care or supervision proceedings but will not extend to, for example, a domestic violence injunction order or a financial order between parties.
However, if the fresh proceedings are issued after the making of a final care order, or are listed and timetabled to be heard separately from the care proceedings, they will not meet the definition of “heard together”, and therefore must be subject to a separate means and merits tested certificate.
Secure accommodation (Back to top)
While secure accommodation proceedings were traditionally seen after the making of a final care order, we are seeing more and more applications being made within ongoing care proceedings.
There is a secure accommodation wording description within the Special Children Act matter type, and the existing certificate can be amended to include the additional proceedings, using the following wording:
‘Secure Accommodation Order – SCA to be represented on an application for a Secure Accommodation order’.
Deprivation of liberty (Back to top)
The treatment of deprivation of liberty cases will depend on how the court deals with the application.
As set out above, if the application is made within existing care proceedings, and is timetabled to be heard alongside the care case, it will be treated as “related proceedings”, meaning the care certificate can be amended to cover it.
There is no specific wording description for these proceedings in the Special Children Act matter type. Therefore, you should submit the amendment as a scope limitation request using the limitation “Hearing”. You should free type the relevant wording into the scope limitation, for example, “in relation to an application for a deprivation of liberty order, to include all steps up to and including the final hearing of that application”.
However, if the deprivation of liberty application is timetabled separately from the care case, submit a separate means and merits tested application under the High Court matter type.
Select the following proceeding wording:
‘Order under Inherent Jurisdiction – welfare of child – High Court
To be represented on an application for an order or declaration dealing with the welfare of a child under the inherent jurisdiction of the High Court’.
Section 37 directions / Section 38 orders (Back to top)
Where the court makes a direction under section 37 of the Children Act 1989, requiring the local authority to investigate whether the threshold for section 31 care proceedings may be met, it may also make an interim care order or interim supervision order under section 38 while that investigation is ongoing.
The funding would be under private law and not public law matter type as no care proceedings are before court.
NOTE: Special Children Act funding is not appropriate as no proceedings have been issued under section 31 of the Children Act.
If the client has an existing live certificate covering the main ongoing private law proceedings then no amendment is necessary and they are already covered for work in relation to the section 37 report and interim care order.
If the client does not have an existing certificate and has no evidence of domestic abuse or child abuse to bring the main private law proceedings into scope then funding is still available on a means and merits tested basis to cover work in relation to the section 37 report and interim care order. The work is in scope under schedule 1 part 1 paragraph 1(1) of LASPO.
Select the following proceeding wording:
‘Represented on S37 report application-Misc Children’ and choose the scope limitation ‘Section 37 Report’.
If the judge discharges the interim care order and does not order another section 37 report then funding will cease at that stage unless your client has obtained evidence of domestic or child abuse in which case they can amend the certificate to add the ongoing proceedings.
If the Local Authority issues proceedings under section 31 of the Children Act then if the client is the parent, the child or has parental responsibility for the child then you can apply for Special Children Act funding at this stage.
If the client does not qualify for SCA funding, then they can apply for public law means and merits tested funding under the public law category of law.