The revelation that the independent social workers who review children’s care plans have not referred any councils for legal action (news, page 8, 3 November) has prompted claims they are insufficiently independent to hold authorities to account.
All councils in England have had to employ independent reviewing officers since September 2004, under an amendment to the Review of Children’s Cases Regulations 1991. This came about after law lords ruled in 2002 that although the courts had no general power to monitor local authorities’ implementation of children’s care plans, councils could be challenged on them under human rights legislation. The statutory IRO role was then created to champion the rights of those children in care who have no other adult to act for them.
IROs must exhaust all options within local authorities, right up to chief executive level, to try to resolve problems with care plans. Campaigners expect this to be successful in many cases, but if not, IROs can refer cases to the Children and Family Court Advisory and Support Service to consider legal action. The fact that this has not happened has added weight to concerns that the IRO role has some fundamental flaws.
The chief complaint is that IROs are not really independent. They are paid out of council funds and do not have access to independent legal advice, meaning they have to get it through councils and could be seen to be biting the hand that feeds them if they refer a case to Cafcass.
One London-based IRO told Community Care of a case where this occurred. She was not willing to endorse the care plan of a 10-year-old boy and the council initially agreed to provide her with independent legal advice, but withdrew it when its legal department realised she could refer the case to Cafcass.
Felicity Collier, chief executive of Baaf Adoption and Fostering, has some sympathy for local authorities, pointing out that many are struggling with high social worker vacancy rates and a lack of resources, making it difficult for them to fully implement all care plans.
But she says she is “staggered” that no cases have been referred to Cafcass.
Collier recommends that IROs should be paid by central government, while Malcolm Richardson, chair of the Magistrates’ Association’s family proceedings committee, suggests that Cafcass could take on responsibility for their employment and wages.
He, too, is surprised that Cafcass has not received any formal referrals. “If IROs are put in place to reassure people that care plans are being implemented then it needs to be seen to be done as well as being done,” he says.
Richardson has no expectations of how many cases should be referred to Cafcass, but says it “should be greater than zero”.
Collier thinks stricter monitoring of councils’ adherence to care plans is required, and suggests a performance indicator measuring the percentage of care plans that are properly implemented.
But Andrew Webb, co-chair of the Association of Directors of Social Services’ children and families committee, defends the way the regulations are working, saying they make it clear that cases should only be referred to Cafcass as a last resort. “I am sure care planning is much more child-centred and more effective so we would not necessarily see [no referrals] as a failure,” he says.
He does not think the IRO role needs to be made more independent, saying separation from case management is sufficient.
And he says problems in implementing care plans “don’t develop through a lack of willingness to tackle issues”, instead attributing them to a shortage of specialist resources available to councils. He also says IROs do not need access to independent legal advice. “Referral to Cafcass is straightforward and the decision about whether a care plan is being followed well enough is not a legal decision,” he says.
However, the IRO who spoke to Community Care says many of her colleagues may feel “vulnerable, insecure and lack access to expert support and advice”, and says the attitude of individual councils is key to the success of the role.
While the “more open-minded” councils have welcomed IROs, “albeit with some nervousness”, she says it “has and is creating a culture shock for many local authorities”, some of whom may perceive the IRO as “a challenge from outside”. As long as this situation exists it is doubtful whether all looked-after children will receive the services they deserve.