A consultation on the Family Court Short Notice Application Guidance and Newborn Baby Protocol has recently been launched by the President of the Family Division, Sir Andrew McFarlane, and the Honourable Mr Justice Keehan. The aim of the new guidance and protocol is to reduce short-notice applications, where mothers involved in care proceedings due to safeguarding concerns have to attend court shortly after giving birth (potentially on the same day).
Short-notice and same-day hearings raise serious concerns in terms of ensuring practice is ethical and humane, and in relation to Article 6 and Article 8 of the Human Rights Act 1998. There are concerns about procedural fairness, parents’ ability to participate effectively in proceedings, and the potential for rushed decision-making, which may overlook alternative care options within the family network.
A BBC News article lays bare how traumatic a short-notice hearing can be for parents. Jade (not her real name) had her first two children taken into care. She had a third baby – a daughter – and while she knew she might lose her too, she didn’t expect to have to attend a family court hearing just a couple of days after the birth. Jade felt unprepared for court and for the outcome when she returned to hospital. She said: “I went into the ward, into the room and she was gone. And I was told to stay there, until someone came to get me. I looked out of the window and in the car park I could see the social worker taking her in her babyseat to the car.”
Jade’s experience is not uncommon.
What the research evidence tells us – including that almost 20% of newborn babies in short-notice hearings are subject to same-day hearings
For the purposes of the consultation and in accordance with the Public Law Outline, all applications made before day 12 after birth are considered as urgent/short notice. Nuffield Family Justice Observatory research shows that the vast majority of care proceedings involving babies in England – nearly three in five – are emergency hearings, heard within two days of an application being made. The proportion of cases where the hearing is conducted seven or more days after the issue date has been shrinking since 2015/16.
Similarly, in Wales, most cases are emergency hearings, heard within two days of an application being made (in recent years, an increasing proportion of hearings have taken place three or more days after the application has been made).
Almost one in five newborn babies in short-notice hearings (18% in England and 19% in Wales) were the subject of a same-day hearing in 2022/23 – increasing from one in 10 over the last 10 years. There is considerable regional variation in the use of same-day hearings.
About the new guidance and protocol
Developed by a working group, the new Short Notice Application Guidance and Newborn Baby Protocol reflect a shared ambition of all those involved in family justice, local authorities, the courts, Cafcass, health services, and legal representatives to uphold children’s rights, ensure a fair process, and promote better outcomes for children and their families. They should guide practice in the courts, but are relevant to all professionals involved in the care and legal representation of parents and infants, including local authority social workers and lawyers, judges, Cafcass children’s guardians and lawyers, midwifes and health practitioners.
The Newborn Baby Protocol should guide practice with parents and their baby both pre- and post-birth. It includes what is required regarding first hearings (notice) to support full participation and legal representation in care proceedings in the acute postpartum period and improve the reliability of urgent decision-making triggered by the birth of a new baby.
The protocol makes it clear that hearings should not take place on the same day as the application. This is to provide some protected time in the acute postpartum period for physical and emotional recovery from the birth, initial bonding time with the baby, and to enable parents to access legal representation. This requirement also provides the children’s guardian with a minimum timeframe in which to consider the application following birth, take into account parents’ responses to birth, and to subsequently, advise the court.
In brief, parents should be given an appropriate period of notice to allow them to prepare and access legal advice (and an independent advocate where appropriate); additional time in hospital through flexibility in the timing of discharge; and information about plans and arrangements and adequate preparation and support regarding any separation from their baby, contact arrangements and follow-up care for parents.
Professionals, in brief, should ensure that the timing of an urgent hearing enables parents to realise their participation rights; is consistent with an emphasis on family networks and family group decision-making in the Children’s social care national framework; and enables the operation of essential balance and checks in urgent care proceedings, including the essential role of the children’s guardian.
National protocols send a clear signal about what should happen in practice in the courts. Some areas have existing local protocols related to short-notice hearings, which have provided a template for the national one and show that clearer expectations can have a positive impact. In these areas, urgent hearings have been reduced drastically, and same-day hearings have been brought to an end (unless for genuine emergencies).
The role of the court is one part of the wider and collective effort needed across local authorities, health services and the family justice system to improve the way in which the state intervenes at birth. The Born into Care: Best practice guidelines aim to inform multi-agency practice.
Strengthening support for parents and recent positive developments in practice and innovation – including pre-birth and recurrent care services – are welcome but remain inconsistent and vary widely across England and Wales. The publication of the national safeguarding review into the death of baby Victoria Marten by the Child Safeguarding Practice Review Panel highlights the need to address a long-standing gap in the availability of trauma responsive, personalised care for parents whose children have been removed and are more likely to return to court with a new baby.
A consultation on the Short Notice Application Guidance and Newborn Baby Protocol is open until Monday 13 April 2026. To read more and have your say, click here. If you would like to watch the event surrounding the launch of the consultation, please click here.
