Delay reaction

The plight of children stuck in the care system is well
documented. Delays in the legal process often result in them being
moved from one temporary placement to another because their cases
take months to complete.

The newly created Department for Constitutional Affairs has pledged
to tackle this with protocols to speed up looked-after children’s
care proceedings (news, page 14, 3 July).¹

Launching the protocols in June, constitutional affairs minister
Lord Falconer said: “It is essential that unnecessary delay is
eliminated and that better outcomes for children and families are
thereby achieved.” Improving outcomes, he added, was part of the
government’s goal to tackle social exclusion.

The protocols will be implemented in November this year. They stem
from the findings of a study on delay, published in March 2002
which said effective case management was key to reducing delays in
the system. With this in mind, the most significant protocol is the
setting of a guide suggesting cases should be completed within 40
weeks. Currently, some care proceedings in south east and south
west England and in Wales are taking more than 12 months to
complete.

The document outlines the six steps care proceedings follow and
what action is expected over what time period from every agency –
including the judiciary – involved in each case. The process starts
with the application, followed by the first hearing in the family
proceedings court (FPC), the allocation hearing and directions, the
case management conference, the pre-hearing review and the final
hearing.

On the day the local authority files its application, the court
must fix the first hearing date and appoint a children’s guardian
and a solicitor for the child. Within two days of the care
proceedings being issued, the Children and Family Court Advisory
and Support Service (Cafcass) must aim to tell the court the name
of the allocated guardian or the likely date it can allocate one.
Within 54 days of the first hearing, the protocol recommends a date
and time for a case management conference in the FPC. A date for
the final hearing should be fixed no later than the 37th week after
the application is issued.

When the court officer allocates one or two case management judges,
the protocol suggests that, where possible, one of them will
conduct the final hearing.

The overall aims of the protocols are laudable. But are their
requirements realistic?

Solicitors Family Law Association chairperson David Burrows says
the protocols should put all agencies on the same timetable from
the start and allow judges more power over the process. “It puts
the duty on all those involved in proceedings to keep the dispute
going before the court under review.”

Catherine Watkins, children and families assessment team manager at
West Sussex Council, says the protocols are in the child’s best
interests, and believes they should be achievable.

She says the 40-week deadline should prevent cases from dragging
on. “It is important for children and their families that
conclusions are reached and clear plans implemented,” she says. But
she warns that some cases might still experience delays because of
the unavailability of experts to carry out assessments or because
new assessments are required.

Counselling service manager Ann Haigh, of children’s charity
Barnardo’s, agrees: “Trying to get an expert assessment on a child
during the holiday period is difficult. We are experiencing this
now after asking around everywhere.”

But the 40-week deadline may in fact be too long, according to
Chris Beckett, social work lecturer at Anglia Polytechnic
University (APU). “If 24 weeks was achievable in 1993 for care
proceedings across all courts then certainly 40 weeks is in
principle achievable and is indeed too long.” But he does concede
that the volume of work going through the courts may make
completing the process within 40 weeks difficult.

The ability to appoint a children’s guardian within 48 hours of a
care application may be affected by the lack of guardians with
suitable experience, says Haigh. “The shortage of guardians was
exacerbated by the arrival of Cafcass in April 2001,” she says. “I
know of several guardians who have left to do other things.”

Bridget McKeigue, also a lecturer in social work at APU, says
although guardians left the service with the advent of Cafcass, it
is a mistake to think the agency’s difficulties are a major cause
of the delays. In fact, delays have doubled since the
implementation of the Children Act 1989. Beckett blames the act for
creating opportunities for argument, allowing more cases to be
brought. With this has come an excessive reliance on expert
witnesses.

“People in general have difficulty in accepting that there has to
be a cut-off point where a decision has to be made. Instead they
want to be absolutely certain about everything and keep getting
even more experts and assessments,” Beckett says.

One area of concern is what happens to the agencies involved in
these cases if they do not adhere to the protocols. McKeigue says
the protocols are restatements of what is already regarded as good
practice but “with no obvious teeth”. She adds: “How is performance
going to be monitored and what will be the penalties for those who
fail to adhere to the timetables set out in the protocol?”

Beckett agrees there are a lack of incentives and penalties to make
the relevant agencies follow the protocols timescale, which will
cause existing delays to continue. He says: “It is always easier to
put off making a difficult decision and ask for more information
than to grasp the nettle.”

A Department for Constitutional Affairs spokesperson says the
protocols are intended only to be guidelines and their success will
be measured on the ability to “reduce delays without increasing
overall costs”. She adds that an IT system is being developed to
track the process of cases and identify the points of delay.

The cost of implementing the protocols is an issue worrying some
professionals. Solicitors have been told their introduction will be
“cost-neutral”, says Burrows, but he is concerned there will be
spending implications in the longer term. “Resources are needed to
get this scheme to work effectively and properly.”

Are agencies involved in care proceedings geared up to working more
efficiently and faster through the process? Burrows says all
parties in child care cases have improved their joint practices
since the Cleveland case in the late 1980s and continue to do
so.

When a matter is before a court, professionals tend to respond
positively to each other, says Watkins. She urges other agencies to
let social workers do their job: “There is still a temptation to
appoint experts to conduct assessments when social workers are
often able to conduct these assessments themselves.”

Operating multi-disciplinary training for all relevant staff in
care cases will improve their joint working, argues Haigh. “It is
important we don’t get into a tick-box scenario; we need to look at
what is going on behind the situation.” McKeigue agrees and calls
for social workers to be sufficiently trained to reduce the need
for additional expert witnesses.

Improving working relationships in care cases is not the problem,
Beckett says. Instead, he advocates building a system “in which
prevarication is not tolerated” and where judges ensure the focus
remains on the issue in hand.

¹ Protocol for Judicial Case Management in
Public Law Children Act Cases, Department for Constitutional
Affairs, 2003,
www.lcd.gov.uk/judicial/cap/jcmprotocol.pdf