The Magistrates' Courts (Children and Young Persons) Rules 1988

PART III CARE PROCEEDINGS AND PROCEEDINGS RELATING TO CARE OR SUPERVISION ORDERS

Application and interpretation of Part III.

13.—(1) This Part shall apply in connection with proceedings in a court in the case of any person in relation to whom proceedings are brought or proposed to be brought under—

(a) any of the following provisions of the Act of 1969, namely:—

(i) section 1 (care proceedings),

(ii) section 15 (variation and discharge of supervision orders),

(iii) section 21 (variation and discharge of care orders);

(b) section 72 or 73 of the Social Work (Scotland) Act 1968(1) (persons subject to supervision requirements or orders moving from or to Scotland);

(c) section 189 or 390 of the Criminal Procedure (Scotland) Act 1975(2) (young person subject to Scottish probation order resident in England or Wales); or

(d) regulations made under sections 21A and 39 of the Act of 1980(3) (authority to retain child in secure accommodation),

except that rules 14, 20(2), 24 and 25 shall not apply in connection with proceedings under the enactments mentioned in sub-paragraphs (b) and (c) above, rules 14(3)(c) and (d) and 25 shall not apply in connection with proceedings of the kind mentioned in paragraph (d), and rule 26 shall apply only in connection with proceedings of that kind.

(2) In this Part of the Rules the following expressions have the meanings hereby respectively assigned to them, that is to say:—

“the applicant” means the person by whom proceedings are brought or proposed to be brought;

“the appropriate local authority” means—

(a)

in relation to proceedings under section 1 of the Act of 1969, the local authority to whom notice of the proceedings falls to be given under section 2(3) of that Act,

(b)

in relation to proceedings under section 15 of the Act of 1969, the local authority whose area is named in the supervision order in pursuance of section 18(2)(a) of that Act, and

(c)

in relation to proceedings under section 21 of the Act of 1969, the local authority to whose care the relevant infant is committed by the care order;

“guardian” (except where it is used in the expression “guardianad litem”) has the same meaning as in section 70(1) and (2) of the Act of 1969;

“the offence condition” means the condition set out in section 1(2)(f) of the Act of 1969;

“the relevant infant” means a person in relation to whom proceedings are brought or proposed to be brought as mentioned in paragraph (1);

“reside” has the meaning assigned to it by section 70(1) of the Act of 1969;

“the respondent” means the relevant infant except that—

(a)

in relation to proceedings under section 15 of the Act of 1969 in which the relevant infant is the applicant it means the supervisor of the relevant infant, and

(b)

in relation to proceedings under section 21 of the Act of 1969 in which the relevant infant is the applicant it means the local authority to whose care the relevant infant is committed.

Notice by person proposing to bring care etc. proceedings.

14.—(1) An applicant proposing to bring proceedings shall send a notice to the clerk of the court specifying the grounds for the proceedings and the names and addresses of the persons to whom a copy of the notice is sent in pursuance of paragraph (2).

(2) Without prejudice to section 2(3) and 34(2) of the Act of 1969 and regulations made under sections 21A and 39 of the Act of 1980, the applicant shall—

(a) send to each of the persons mentioned in paragraph (3) a copy of the said notice, and

(b) notify each of those persons of the date, time and place appointed for the hearing unless a summons is issued for the purpose of securing his attendance thereat.

(3) The persons referred to in paragraph (2) are the following persons other than the person who is the applicant—

(a) the relevant infant, unless it appears to the applicant inappropriate to notify him in pursuance of paragraph (2), having regard to his age and understanding;

(b) the parent or guardian of the relevant infant if the whereabouts of such parent or guardian is known to the applicant or can readily be ascertained by him;

(c) any grandparent of the relevant infant if the whereabouts of such grandparent is known to the applicant or can readily be ascertained by him;

(d) any foster parent or other person with whom the relevant infant has had his home for a period of, or periods amounting in total to, not less than 42 days, ending not more than six months before the date of the application, if the whereabouts of such a person is known to the applicant or can readily be ascertained by him;

(e) the appropriate local authority;

(f) where the proceedings are care proceedings brought under section 1 of the Act of 1969 and notice thereof falls to be given to a probation officer in pursuance of section 34(2) of the Act of 1969, that probation officer, and

(g) where the proceedings are for the variation or discharge of a supervision order which names a person other than the appropriate authority as the supervisor, that supervisor.

(4) In the case of an application to which this paragraph applies there shall be sent with the copy of the notice required by paragraph (2) to be sent to the respondent a notice stating that he should inform the clerk of the court as soon as practicable and not later than 14 days after the receipt of the notice whether or not he intends to oppose the application.

(5) Paragraph (4) applies to—

(a) an application under section 15(1) of the Act of 1969 for the discharge of a relevant supervision order or a supervision order made under section 21(2) of that Act on the discharge of a relevant care order; and

(b) an application under section 21(2) of that Act for the discharge of a relevant care order or a care order made under section 15(1) of that Act on the discharge of a relevant supervision order.

In this paragraph “relevant care order” means a care order made under section 1 of the Act of 1969 and “relevant supervision order” means a supervision order made under that section.

Notice to parent or guardian of party status.

15.  In any proceedings in which an order under section 32A of the Act of 1969 (conflict of interest between parent and child or young person) is made the court shall cause to be sent to the parent or guardian in respect of whom the order is made and to every other party to the proceedings notice that the order has been so made and of its effect under section 32A(4A)(4) of the Act of 1969.

Appointment and duties of guardianad litem.

16.—(1) In any proceedings to which an order under section 32A(1) of the Act of 1969 relates (not being an order under section 32A(2)) the court shall appoint a guardianad litem of the relevant infant for the purposes of the proceedings if it appears to the court that it is in his interests to do so.

(2) An appointment of a guardianad litem under this rule or section 32B(1) of the Act of 1969 shall be made by order and the person to be appointed shall be selected from a panel established by regulations under section 103 of the Children Act 1975(5) except that the person appointed shall not—

(a) be a member, officer or servant of a local authority or authorised person (within the meaning of section 1 of the Act of 1969) which is a party to the proceedings; or

(b) be, or at any time have been, a member, officer or servant of a local authority or voluntary organisation (within the meaning of section 87(1) of the Act of 1980) who has been directly concerned in that capacity in arrangements relating to the care, accommodation or welfare of the relevant infant; or

(c) be a serving probation officer (except that a probation officer who has not in that capacity been previously concerned with the relevant infant or his family and who is employed part-time may, when not engaged in his duties as a probation officer, act as a guardianad litem).

(3) Where the court has appointed a guardianad litem under this rule or section 32B(1) of the Act of 1969, and it appears to the court desirable that some other person should act as guardianad litem in substitution for the person appointed earlier, the court shall, by order, revoke the earlier appointment and make a new appointment.

(4) The powers of the court to appoint a guardianad litem under this rule or section 32B(1) of the Act of 1969 and to give directions concerning legal representation of the infant in accordance with paragraph (6)(c) or concerning any other matter in accordance with paragraph (6)(e) shall also be exercisable, before the hearing of the application to which the proceedings relate, by a single justice or by the justices' clerk; and where the power to appoint a guardianad litem is so exercised, the single justice or the justices' clerk shall on the same occasion consider whether the infant should be legally represented and may direct that the guardianad litem so appointed is to instruct a solicitor to represent the infant.

(5) The court shall cause notice of an order appointing a guardianad litem to be given to the guardianad litem, the applicant and the persons to whom notice of the proceedings has been given under rule 14(2).

(6) The guardianad litem appointed under this rule or section 32B(1) of the Act of 1969, with a view to safeguarding the interests of the relevant infant before the court shall—

(a) so far as it is reasonably practicable, investigate all circumstances relevant to the proceedings and for that purpose shall interview such persons, inspect such records and obtain such professional assistance as the guardianad litem thinks appropriate;

(b) regard as the first and paramount consideration the need to safeguard and promote the infant’s best interests until he achieves adulthood, and shall take into account the wishes and feelings of the infant, having regard to his age and understanding, and shall ensure that those wishes and feelings are made known to the court;

(c) except where a solicitor has been instructed to represent the infant before the appointment of the guardianad litem or a direction has been given in accordance with paragraph (4) of this rule that a solicitor be instructed, obtain the views of the court as to whether the infant should be legally represented and, unless the court otherwise directs, instruct a solicitor to represent the infant;

(d) consider how the case should be presented on behalf of the infant, acting in conjunction with the solicitor in a case in which one has been instructed (whether by the guardianad litem or otherwise) to represent the infant; and shall, in such a case, instruct the solicitor (unless the solicitor considers, having taken into account the views of the guardianad litem, that the infant wishes to give instructions which conflict with those of the guardianad litem and that he is able, having regard to his age and understanding, to give such instructions on his own behalf);

(e) seek the views of the court in any case where difficulties arise in relation to the performance of his duties;

(f) as soon as practicable make a report in writing to the court for the purposes of rule 25(3)(a);

(g) perform such other duties as the court may direct.

(7) When the court has finally disposed of the case the guardianad litem shall consider, acting in conjunction with the solicitor in a case in which the infant is legally represented, whether it would be in the infant’s best interests to appeal to the Crown Court and, if it is considered that it would be, he shall ensure that notice of appeal is given on behalf of the infant (unless the solicitor, in a case in which the infant is legally represented, considers, having taken into account the views of the guardianad litem, that the infant wishes to give instructions which conflict with those of the guardianad litem and that he is able, having regard to his age and understanding, to give such instructions on his own behalf).

Applications by grandparents to be parties to proceedings.

17.—(1) Where in any such proceedings as are mentioned in section 32A(1) of the Act of 1969 a grandparent of the relevant infant makes an application under section 32C of that Act, the circumstances in which the court may give leave for that grandparent to be made a party to the proceedings are those in which the court is satisfied that—

(a) the grandparent, before the commencement of the proceedings, had a substantial involvement in the infant’s upbringing at any time during the infant’s lifetime; and

(b) making the grandparent a party to the proceedings is likely to be in the interests of the welfare of the relevant infant.

(2) The power of the court to give leave for a grandparent to be made a party to the proceedings shall also be exercisable before the hearing of the proceedings, and shall be so exercisable also by the justices' clerk.

Rights of parents and guardians.

18.  Without prejudice to the provisions of section 32A(4A) of the Act of 1969 or to any other provision of these Rules which provides for a parent or guardian to take part in proceedings, the relevant infant’s parent or guardian shall be entitled:

(a) to meet any allegations made against him in the course of the proceedings by cross-examining any witness and calling or giving evidence (and shall call or give evidence at the conclusion of the evidence for the respondent and the evidence, if any, for the applicant in rebuttal but before either the respondent or the applicant addresses the court under rule 14(4) or (5) of the Magistrates' Courts Rules 1981(6) as applied by rule 20(3) of these Rules); and

(b) to make representations to the court, and shall do so at any such stage after the conclusion of the evidence in the hearing as the court considers appropriate.

Rights of other persons.

19.—(1) Without prejudice to any other provision of these Rules which provides for a parent, guardian or grandparent to take part in proceedings, any person to whom this paragraph applies shall be entitled to make representations to the court, and shall do so at any such stage after the conclusion of the evidence in the hearing as the court considers appropriate.

(2) The preceding paragraph applies to:

(a) any person who is required to be given notice of the proceedings by virtue of rule 14(3)(d) of these Rules; and

(b) any other person who is not a party to the proceedings and who satisfies the court that both of the criteria specified in the next following paragraph are met.

(3) The criteria mentioned in the preceding paragraph are—

(a) that the person in question has demonstrated an interest in the infant’s welfare which has been maintained until the commencement of the proceedings;

(b) that the representations of that person are likely to be of relevance to the proceedings and to the welfare of the relevant infant.

Adjournment of proceedings and procedure at hearing.

20.—(1) The court may, at any time, whether before or after the beginning of the hearing, adjourn the hearing, and, when so doing, may either fix the date, time and place at which the hearing is to be resumed or, unless it makes an interim order in respect of the relevant infant in pursuance of section 2(10) or 16(4) of the Act of 1969 or section 21A(4) of the Act of 1980, leave the date, time and place to be determined later by the court; but the hearing shall not be resumed at that date, time and place unless the court is satisfied that the applicant, the respondent, any other party to the proceedings and any person to whom rule 19(1) applies have had adequate notice thereof.

(2) Subject to the provisions of the Act of 1969, sections 56, 57 and 123 of the Magistrates' Courts Act 1980(7) (non-appearance of parties and defects in process) shall apply to the proceedings as if they were by way of complaint and as if any references therein to the complainant, to the defendant and to the defence were, respectively, references to the applicant, to the respondent or any other party to the proceedings and to his case.

(3) Subject to the provisions of the next following paragraph, rules 14 and 16(1) of the Magistrates' Courts Rules 1981 (order of evidence and speeches and form of order) shall apply to the proceedings as if they were by way of complaint and as if any references therein to the complainant, to the defendant and to the defence were, respectively, references to the applicant, to the respondent and to his case.

(4) In any case in which there is any party other than the applicant and the respondent, by virtue of an order made under section 32A or 32C of the Act of 1969, the relevant infant shall be entitled to cross-examine witnesses and to address the court after any parent or grandparent, and any parent shall cross-examine witnesses or address the court after any grandparent, except that the court may permit cross-examination or hear the parties in a different order, which it shall state at the beginning of the hearing, if, after hearing any representations of the parties as to the order in which the hearing should proceed, it appears to it that to do so would better serve the interests of justice in the circumstances of the case.

(5) Where the proceedings are brought under section 1 of the Act of 1969 and it is alleged that the offence condition is satisfied then, in relation to any written statement tendered in evidence under section 9 of the Criminal Justice Act 1967(8)to substantiate or refute that allegation, rule 70 of the Magistrates' Courts Rules 1981 shall apply as if any references therein to the prosecutor and to the accused were, respectively, references to the applicant and to the relevant infant.

Duty of court to explain nature of proceedings; evidence and order of speeches.

21.—(1) Except where the relevant infant is the applicant or where, by virtue of any enactment, the court may proceed in his absence, before proceeding with the hearing the court shall inform him of the general nature both of the proceedings and of the grounds on which they are brought, in terms suitable to his age and understanding, or if by reason of his age and understanding or his absence it is impracticable so to do, shall so inform any parent or guardian of his present at the hearing.

(2) Where the proceedings are brought under section 1 of the Act of 1969 and it is alleged that the offence condition is satisfied, then, unless the case falls to be remitted to another court in pursuance of section 2(11) of the Act of 1969 and it does not appear to the court appropriate to determine under section 3(5) of that Act whether the offence condition is satisfied before remitting the case—

(a) the court shall explain to the relevant infant the substance of the alleged offence in simple language suitable to his age and understanding and ask him whether or not he admits to being guilty of that offence and, before considering any other matter relevant to the proceedings, shall consider and determine whether or not the offence condition is satisfied;

(b) in relation to the proceedings by way of such consideration rules 8 and 9 shall apply subject to any necessary modifications and, in particular, as if any reference therein to the charge were a reference to the allegation;

(c) in relation to proceedings by way of such consideration rules 20(2), 23(2) and 24 of these Rules shall not apply but rule 13 of the Magistrates' Courts Rules 1981 (order of evidence and speeches) shall apply to the proceedings as if they were criminal proceedings to which that rule applies and as if any references therein to the accused, to the defence, to the prosecutor and to the prosecution were, respectively, references to the relevant infant, to his case, to the applicant and to his case, and

(d) on determining whether or not the offence condition is satisfied, the court shall inform the relevant infant of their finding.

(3) Where a guardianad litem has been appointed, he shall be given an opportunity, if he is able to give evidence relevant to the applicant’s case (whether or not he has already been called as a witness), to give such evidence at the conclusion of the evidence for the applicant and respondent, but before any evidence or representations are heard in accordance with rule 18 or 19 of these Rules.

Conduct of case on behalf of relevant infant.

22.—(1) Except where—

(a) the relevant infant or his parent or guardian is legally represented, or

(b) the proceedings are brought under section 1 of the Act of 1969 in pursuance of a request made by his parent or guardian for the purposes of section 3(1) of the Act of 1963 or in pursuance of an order thereunder, or

(c) the court has under section 32A of the Act of 1969 ordered that in relation to the proceedings his parent or guardian is not to be treated as representing the relevant infant or as otherwise authorised to act on his behalf,

the court shall, unless the relevant infant otherwise requests, allow his parent or guardian to conduct the case on his behalf, subject however to the provisions of rule 23(2).

(2) If the court thinks it appropriate to do so it may, unless the relevant infant otherwise requests or a guardianad litem has been appointed, allow a relative of his or some other responsible person to conduct the case on his behalf.

Power of court to hear evidence in absence of relevant infant and to require parent or guardian to withdraw.

23.—(1) Where, in the case of proceedings under section 1 of the Act of 1969, the ground on which the proceedings are brought or, in the case of any proceedings, the evidence likely to be given, is such that in the opinion of the court it is in the interests of the relevant infant that the whole, or any part, of the evidence should not be given in his presence, then, unless the relevant infant is conducting his own case, the court may hear the whole or part of the evidence, as it thinks appropriate, in his absence:

Provided that evidence relating to the character or conduct of the relevant infant (including, in the case of proceedings under section 1 of the Act of 1969, evidence that the offence condition is satisfied) shall be heard in his presence.

(2) Subject to rule 21(2)(c), if the court is satisfied that in the special circumstances it is appropriate so to do, it may require a parent, guardian or grandparent of the relevant infant or any other person entitled to make representations by virtue of rule 19 to withdraw from the court while the relevant infant gives evidence or makes a statement: Provided that the court shall inform the person so excluded of the substance of any allegations made against him by the relevant infant.

Duty of court to explain procedure to relevant infant at end of applicant’s case.

24.  Subject to rule 21(2)(c), if it appears to the court after hearing the evidence in support of the applicant’s case that he has made out aprima facie case it shall tell the relevant infant or the person conducting the case on his behalf under rule 22 that he may give evidence or make a statement and call witnesses.

Consideration of reports.

25.—(1) The court shall arrange for copies of any written report of a guardianad litem, probation officer, local authority, local education authority, educational establishment or registered medical practitioner before the court to be made available, so far as practicable before the hearing, to:

(a) the applicant;

(b) the appropriate local authority, where it is not the applicant;

(c) the legal representative, if any, of the relevant infant;

(d) the parent or guardian of the relevant infant (whether or not he is a party to the proceedings by virtue of an order under section 32A of the Act of 1969);

(e) the guardianad litem of the relevant infant;

(f) the relevant infant, except where the court otherwise directs on the ground that it appears to it impracticable to disclose the report having regard to the age and understanding of the infant or undesirable to do so having regard to serious harm which might thereby be suffered by him; and

(g) any other person who is a party to the proceedings.

(2) Copies of any such report may, if the court considers it desirable to do so, be shown to any person who is required to be given notice of the proceedings in pursuance of rule 14(3)(d) of these Rules and to any other person who is entitled to make representations to the court by virtue of rule 19(1) of these Rules.

(3) Where the court is satisfied that the applicant’s case has been proved—

(a) where a guardianad litem has been appointed, the court shall take into consideration his written report to the court; and the guardianad litem shall in addition be entitled to make oral representations to the court;

(b) the court shall take into consideration such information as to the relevant infant’s general conduct, home surroundings, school record and medical history as may be necessary to enable it to deal with the case in his best interests and, in particular, shall take into consideration such information as aforesaid which is provided in pursuance of section 9 of the Act of 1969;

(c) if such information as aforesaid is not fully available, the court shall consider the desirability of adjourning the case for such inquiry as may be necessary;

(d) any written report of a guardianad litem, probation officer, local authority, local education authority, educational establishment or registered medical practitioner may be received and considered by the court without being read aloud; and

(e) if the court considers it necessary in the interests of the relevant infant, it may require him or his parent or guardian, if present, to withdraw from the court.

(4) In any case in which the relevant infant is not legally represented and where a report which has not been made available to him in accordance with a direction under paragraph (1)(f) has been considered without being read aloud in pursuance of paragraph (3)(d) or where the relevant infant, his parent or guardian has been required to withdraw from the court in pursuance of paragraph (3)(e), then—

(a) the relevant infant shall be told the substance of any part of the information given to the court bearing on his character or conduct which the court considers to be material to the manner in which the case should be dealt with unless it appears to it impracticable so to do having regard to his age and understanding, and

(b) the relevant infant’s parent or guardian, if present, shall be told the substance of any part of such information which the court considers to be material as aforesaid and which has reference to his character or conduct or to the character, conduct, home surroundings or health of the relevant infant;

and, if such a person, having been told the substance of any part of such information desires to produce further evidence with reference thereto, the court, if it thinks the further evidence would be material, shall adjourn the proceedings for the production thereof and shall, if necessary in the case of a report, require the attendance at the adjourned hearing of the person who made the report.

Consideration of reports: secure accommodation proceedings.

26.—(1) This rule applies only in connection with proceedings brought under regulations made under sections 21A and 39 of the Act of 1980.

(2) The court shall arrange for copies of any written report before the court to be made available, so far as practicable before the hearing, to:

(a) the applicant;

(b) the legal representative, if any, of the relevant infant;

(c) the parent or guardian of the relevant infant;

(d) the relevant infant, except where the court otherwise directs on the ground that it appears to it impracticable to disclose the report having regard to the age and understanding of the infant or undesirable to do so having regard to serious harm which might thereby be suffered by him;

and copies of such a report may, if the court considers it desirable to do so, be shown to any person who is required to be given notice of the proceedings in pursuance of rule 14(3)(d) of these Rules.

(3) In any case in which the court has determined that the relevant criteria are satisfied, the court shall, for the purpose of determining the maximum period of authorisation to be specified in the order, take into consideration such information as it considers necessary for that purpose, including such information which is provided in pursuance of section 9 of the Act of 1969.

(4) Any written report may be received and considered by the court without being read aloud.

Duty of court to explain manner in which it proposes to deal with case and effect of order.

27.—(1) Before finally disposing of the case or before remitting the case to another court in pursuance of section 2(11) of the Act of 1969, the court shall in simple language inform the relevant infant, any person conducting the case on his behalf, and his parent or guardian, if present, of the manner in which it proposes to deal with the case and allow any of those persons so informed to make representations:

Provided that the relevant infant shall not be informed as aforesaid if the court considers it undesirable or, having regard to his age and understanding, impracticable so to inform him.

(2) On making any order, the court shall in simple language suitable to his age and understanding explain to the relevant infant the general nature and effect of the order unless it appears to it impracticable so to do having regard to his age and understanding or, in the case of an order requiring his parent or guardian to enter into a recognizance, it appears to it undesirable so to do; and shall in any case give such an explanation to the relevant infant’s parent or guardian, if present.

Leave of court for withdrawal of discharge applications.

28.  In any case in which the power to apply under section 21(2) of the Act of 1969 for the discharge of a care order has been exercised on behalf of the relevant infant by his parent or guardian, that application may be withdrawn otherwise than by that parent or guardian only with the leave of the court; and the court shall not grant such leave unless, after considering the grounds for the application for withdrawal and after hearing any representations which that parent or guardian may wish to make and any evidence which he may wish to adduce, it considers that it would be inappropriate for it to discharge the order.

(1)

1968 c. 49; sections 72 and 73 were amended by the Act of 1969, Schedule 5, paragraphs 58 and 59 and Schedule 6.

(2)

1975 c. 21.

(3)

1980 c. 5; section 21A was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 2, paragraph 50 and section 39 was amended by the Criminal Justice Act 1982 (c. 48), Schedule 14, paragraph 46 and the Health and Social Services and Social Security Adjudications Act 1983, Schedule 10, Part I.

(4)

Subsection (4A) was inserted by the Act of 1986, section 3(1).

(5)

1975 c. 72; section 103 was amended by the Act of 1980, Schedule 5, paragraph 37 and the Health and Social Services and Social Security Adjudications Act 1983, Schedule 1, Part II, paragraph 4 and Schedule 2, paragraph 28; the relevant regulations are S.I. 1983/1908.

(6)

S.I. 1981/552.

(7)

1980 c. 43.

(8)

1967 c. 80; section 9 was amended by the Courts Act 1971 (c. 23), Schedule 8, Part II, paragraph 49 and, prospectively, by the Act of 1969, Schedule 5, paragraph 55.