Care proceedings – how the family justice system works

More information is required to fill in the gaps in existing knowledge about care proceedings for children. This study provides key data on all the process stages and also pre-proceedings activity. Anna Gupta writes

THE RESEARCH

Title: Care Profiling Study
Authors: Judith Masson, Julia Pearce and Kay Bader with Olivia Joyner, Jillian Marsden and David Westlake
Institution: The study was undertaken at the University of Bristol
Available: The study is available from the Ministry of Justice website

OBJECTIVES

The study was jointly commissioned by the Department for Constitutional affairs (now the Ministry of Justice) and the Department of Education and Skills (now known as the Department for Children, Schools and Families) in September 2006.

The objective of the study was to provide baseline data on care proceedings under section 31 of the Children Act 1989 and the protocol for public law cases, which commenced in 2004. The study examines:

● The family circumstances of the children and parents who were drawn into care proceedings.

● The work the council had done with the family prior to proceedings commencing, and subsequently.

● The legal processes by which cases were decided, including the representation of the parties, the work of the children’s guardian, the commissioning of expert evidence.

● The outcomes of cases in terms of the orders made.

The research study was part of a wider programme of review and reform of care proceedings that highlighted the gaps in the existing knowledge on care proceedings. A new Public Law Outline (PLO) was recently implemented and this introduces significant changes to the procedures for care proceedings. The “baseline data” provided by this study can also be used to evaluate these changes in the future.

METHODOLOGY

This study examined the court files for 386 cases involving 682 children in 15 Family Proceedings Courts and eight County Courts. Data collected from the file records was supplemented by observations and informal interviews with court personnel, and three focus groups with barristers, solicitors and judges working in the family courts.

FINDINGS AND CONCLUSIONS

The study provides detailed information on care proceedings that complements the existing research studies in this area (see Brophy, 2006). A thorough breakdown of the data and examples of case types is included in the appendices of the report.

In terms of the composition of the families involved in proceedings, half of the index children were cared for by their mothers alone and almost a third by both parents. Single parent fathers were unusual, with only 13 of the children being cared for solely by their father. Much less information was available on fathers, and their involvement in the proceedings more limited.

The proportion of boys involved in care proceedings was slightly higher than that of girls. The majority (57%) of children were under five years of age and over a quarter under one. This reflects recognition of the vulnerability of young babies. In terms of the ethnicity of the children, 72% of the index children were White British, Irish or Other White 13% Black children with dual heritage 5% Black African 4% Black Caribbean 2% South Asian and 6.% Other, which included children from North Africa or the Middle East. The high proportion of dual heritage children has also been noted in other studies (Thoburn et al, 2005). Asylum and immigration issues, and the need for interpreters, added to the complexity in many cases involving Black or ethnic minority families.

As with other studies on care proceedings, this research identified a high proportion of parents with mental health or substance misuse problems, learning disabilities, experiencing domestic violence or a chaotic lifestyle (Brophy, 2006). Only 15% of mothers did not experience any of these, and many experienced a number of these problems. Lack of co-operation, particularly refusal of support for substance misuse or mental health problems, also featured in a significant proportion of cases.

Most children and families (91%) had been known to social services for some time prior to proceedings being taken. However the instigation of proceedings in the largest proportion of cases (42%) resulted from unplanned crisis interventions, and 22% of the pre-planned applications were in relation to new-born babies. The authors note two seemingly contradictory characteristics, namely long-term social work involvement of children’s services, alongside unplanned initiation of proceedings in relation to crises.

Only a minority of cases (15%) had a recent core assessment at the beginning of proceedings and in only 6% of cases were specialist assessments available prior to the application, despite half of the children being on the child protection register. It is likely that these cases reflect a well-documented dynamic in decision-making in cases of neglect and poor parenting, where children are left “bumping along the bottom” prior to a crisis that precipitates proceedings. It is also important to note that the researchers found no indications that proceedings were brought unnecessarily.

In addition to the issues identified above, other factors contributed to the complexity of cases and decision-making in care proceedings.

Where there was more than one child, the siblings often had different parentage and experienced different pathways, placements and final orders. In only 38% of cases involving more than one child was there no difference in relation to these factors. The involvement of more than one local authority and concurrent criminal proceedings added to the complexity.

Changes of placement affected all but 18% of the children. Nearly one-third of children were not in permanent placements at the time of the final hearing. About a quarter of these were young children who had experienced several moves and were made subject to care or freeing orders at the end of the proceedings. Most children who had experienced placement change, and were permanently placed at the end of proceedings were placed with a parent or relative.

One of the key principles of the Children Act 1989 is the avoidance of delay. While almost a quarter of cases ended relatively quickly within 32 weeks of the initial application, other cases took much longer. Factors leading to delay included delay in family placements, completion of reports, testing placement with parents, late transfer of cases and joining of parties, as well as difficulties in listing cases with longer final hearings.

An important point is made that not all delay is prejudicial to the child and sometimes allows for the provision of more detailed knowledge in order to make important decisions that may have far-reaching consequences for the family.

The Family Justice System is currently going through much change. Apart from the recent implementation of the PLO, there have been changes to the funding of solicitors involved in care proceedings, and from May 2008 a rise in the fees for local authorities issuing care proceedings from around £150 to more than £4,000.

The stated aims of the programme of review and reform of care proceedings is to deliver better outcomes for children and parents while ensuring that resources are used in the most effective, proportionate and timely way. Not only does this research study provide baseline data from which the impact of these changes can be evaluated, the findings also indicate areas where there may be difficulties in the implementation of these aims.

The PLO requires greater emphasis to be given to the avoidance of proceedings by the use of negotiated agreements and pre-proceeding assessments of parents and family members.

But changes in procedural guidance will only be effective if accompanied by improvements in the provision of analytical assessments and supportive interventions. Without this there might be unintended, negative consequences.

The study suggests the problem is not one of unnecessary proceedings, and further barriers for local authorities initiating care proceedings, including the requirements of the PLO and increased fees, may result in more drift and some children being left in situations of harm. An increase in the coercive use of section 20 accommodation, which does not lead to the automatic independent representation of children and parents, may also be a consequence of the deterrents to the initiation of care proceedings, and lead to delays in decisions about permanent care for some children.

Any future evaluation of the PLO must look at the impact of pre-proceeding interventions, as well as those once proceedings have been initiated.

Anna Gupta, works for the Department of Health and Social Care, Royal Holloway, University of London

LINKS AND RESOURCES

● A study conducted by Brophy which reviews the research on care proceedings is available electronically.

● Revised guidance and regulations on Children Act court proceedings, including the new Public Law Outline, is available electronically

● Brophy, J. (2006) Research Review:Child Care Proceedings under the Children Act 1989, DCA Research Series 5/06

● Thoburn, J., Chand, and A. Procter, J. (2005) Child Welfare Services for Minority Ethnic Families, London: Jessica Kingsley