The government’s review of child care proceedings has been roundly
criticised by professionals, including magistrates, family lawyers,
social workers and guardians.
In July the Department for Constitutional Affairs decided to
include the review within A Fairer Deal for Legal Aid,
which focuses on making the legal aid system more cost-effective.
For many, this indicates a cost-cutting intent.
That, combined with the fact the review is to be completed by
January, has led to claims that the government is trying to “sneak
in” controversial reforms.
While the DCA insists it has consulted “a wide range of key
stakeholders,” several organisations have criticised the department
for failing to consult extensively enough.
These concerns led two of the largest family lawyer groups – the
Association of Lawyers for Children and Resolution – to write to
lord chancellor Lord Falconer, outlining their fears and
complaining that a promised advisory group has never materialised.
The department has since set a date in early November for a
consultation meeting, but there remains unease that there is now
not enough time for effective dialogue.
Much of the alarm focuses on the paper’s wording. References to an
“over-represented approach within the courts” have prompted claims
from the lawyers groups, the Magistrates Association, guardians
body Nagalro and the British Association of Social Workers, that
the review’s conclusions have been dangerously pre-empted.
Proposals to reduce the number of cases requiring lengthy attention
from the courts, through “early, low-level judicial interventions”
and a “more inquisitorial system” have also caused concern.
For Malcolm Richardson, chair of the Magistrates Association’s
family proceedings committee, the wording shows a failure to grasp
the nature of public law cases. He says: “They don’t seem to show a
very great understanding of what it is we are about when we are
dealing with care proceedings.”
Richardson says the system is already inquisitorial – the judiciary
asks questions of the parties over the direction of the case, as
demanded by the 2003 case management protocol. The protocol,
introduced in 2003, was designed to cut unnecessary delays by
introducing a 40-week timetable for all cases.
The department justifies the need to cut costs by citing a 37 per
cent increase in caseload and a 77 per cent increase in expenditure
since 1999, identifying a “proliferation of parties” and “greater
use of experts” as key problems.
But Richardson claims the protocol has helped stabilise case
Nagalro is unconvinced by DCA claims that the proposals are not an
attack on the tandem model, introduced by the Children Act 1989,
whereby the interests of the child are safeguarded by a guardian
and represented in proceedings by a solicitor. Nagalro chair Alison
Paddle says there has been widespread shock at the review, with
many guardians feeling that they had not been alerted to the
The British Association of Social Workers also feels frozen out.
Professional officer for England Nushra Mapstone says BASW had not
been made aware of the review.
“This begs the question of just who is on the ‘comprehensive’ list
of external stakeholders?”, she says.
A spokeswoman for the DCA says there will be time for further
consultation after the review is completed in January.
Liz Goldthorpe, chair of the ALC, cites the broad consensus
achieved among practitioners through the lengthy consultations
prior to the Children Act 1989, calling for an extended
Without an extended consultation period, she warns, the reforms
could undermine the system’s capacity to protect vulnerable