Other Public Law: Discharge of a Care Order (Part IV Section 39 Children Act ’89)

Posted 11.12.2018

Emily Ducat

In November, to open up the range of files that I could cost, I was trained to bill Discharge of a Care Order files. The two Discharge of a Care Order files that I costed this month were LAA assessed CCMS bills, as opposed to Court Assessed Bills. This distinction is made based on the ‘assessable costs’ accrued on the file. For a Discharge of a Care Order file to be a Court Assessed Bill, the profit costs and disbursements (excluding FAS and Counsel fees) must exceed £2500. Court Bills require a longer narrative, details of the pleadings to be entered, and correspondence to be broken down depending on the recipient and who sent it. As my initial training focused on Care and Supervision Orders, there were several differences to navigate when approaching a Discharge of a Care Order file. These differences provided me with several challenges and learning opportunities.

Regarding a Care or Supervision Order, the proceedings must be initiated by the Local Authority. However, this is not the case for Discharge of a Care Order. Once a notable amount of time has passed, and the parent believes that their situation has changed for the better, an application can be made by any person with parental responsibility, the child/children subject to the Order in place, or, in the case of a Care Order, the Local Authority (or the supervisor if it is an application for discharge of a Supervision Order). The Local Authority conducts six-monthly reviews at which it can be decided whether an application should be made for discharge. As the files I costed involved our solicitor-client acting for the Applicant parents, they contained types of work and applications that were new to me; I had previously only produced bills regarding the Respondents in Care and Supervision Order files. As I don’t have a background in law, I had to gain an understanding of abbreviations used to refer to particular documents that I hadn’t seen so far in my training. The application is made on the form C110A. Copies of the C110A are made available to every person believed to have parental responsibility for the child under a child arrangements order before the care order was granted, the child, and the parties to the original care proceedings. Other people who must be given notice are the Local Authority that is accommodating the child and anyone who is caring for the child at the time of application. On filing the application with the court, the application must be completed within 26 weeks. This same deadline of 26 weeks is used within Care and Supervision Order proceedings as it is considered to be in the best interest of the child.

Primarily, the difference between the Care and Supervision Order files and Discharge of a Care Order files that I was concerned with were the fee schemes. In Care proceedings, there is a fixed fee. Enhancements can only be added if the base profit costs (such as correspondence and preparation time) amount to be more than double the fixed fee, the point at which you escape and are awarded your actual profit costs. In Other Public Law (the area that Discharge of a Care Order falls within) there is no fixed fee, meaning that enhancements can be added to the actual work done regardless of the size of the file. Enhancements can be automatically allowed for a fee earner’s work if they have certain panel memberships, or can be applied at discretion if the matter is deigned to have been particularly complex, challenging or was subject to significant delays. The final difference that I wish to highlight is the difference in the Family Advocacy Scheme fees applied to Care Orders and Discharge of Care Orders. With the exception of advocates meetings and bundle payments, which have the same fee in both types of proceedings, the Family Advocacy Scheme payments for Discharge of Care Orders are lower than the respective fees for Care and Supervision Orders. Regarding the hourly rates, however, Discharge of Care Order is currently allowed higher hourly rates for preparation, time with counsel, and time travelling or waiting.

It was interesting to learn how to approach different types of Legal Aid claims and how they differ. As Discharge of a Care Order retains some elements of the Care and Supervision Order files that I began my training on, it felt like a good, approachable stepping stone to widen my repertoire. I look forward to branching out and being able to take on a wider spectrum of work in the future.

Danielle Conaghan - Edwards Duthie Solicitors

Abbie Huxley - Burke Niazi Solicitors

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