Cafcass, councils and family courts have been under severe stress in the wake of the baby Peter case. Gordon Carson reports
The pressure on England’s care system, which has been building since news of the baby Peter case broke last November, shows no sign of easing.
Latest figures from Cafcass show it received 755 applications for section 31 care and supervision orders in July, 270 more than in the same month last year and only just below June 2009’s record of 774.
Authorities are not certain if the increase is solely due to the publicity over the baby Peter case, or also a result of the recession accelerating family breakdown, abuse and neglect.
Here, we assess the possible costs to Cafcass and councils if the trends continues, and ask what the impact will be on the courts and frontline care services.
However, the £6m rise from 2008-9 to 2009-10, from £118m to £124m, looks set to be gobbled up by the surge in section 31 applications.
Chief executive Anthony Douglas says Cafcass has already committed its budget for the financial year, which still has seven months to run.
Cafcass received more section 31 applications (2,826) in the first four months of the current financial year than it did in the first half of 2008-9 (2,604).
If the trend continues, applications for the full financial year could be as many as 2,000 higher than the total of 6,471 in 2008-9.
At an average cost to Cafcass of £6,800 over the lifetime of a case, it be looking at additional costs from these cases of more than £13m. This is more than double the budget increase, though, given the length of cases, some of the cost will not fall in this financial year.
To add to the pressure, Cafcass reported a near 30% increase in private law referrals in June, compared with 12 months earlier, and the highest monthly figure since recording began in April 2006. These cases take about a third of the resources of a section 31 application but are much more numerous – Cafcass received 38,449 referrals in 2008-9, compared with 6,471 applications.
Douglas says Cafcass “couldn’t have expected more money” from government, and now has to “spread what we have around more to offer children something in new cases”.
“All staff intelligence suggests extra demand will continue, if not quite at some of the peak levels we have seen,” he says.
Douglas has set out measures to tackle the increase in new practice guidance, as has the head of the family courts, Mark Potter.
But Douglas is clear that Cafcass has no money to spend on additional staff, particularly those self-employed children’s guardians it does not already use.
Cafcass increased its expenditure on self-employed guardians to £10.1m in 2008-09, up 13% on the previous year, although it used fewer of them.
Despite claims from Nagalro, the guardians’ professional body, that Cafcass could be making more use of self-employed practitioners, Douglas says Cafcass is “using the ones we want to use”, adding: “A lot don’t meet our quality standards, but those that do are more or less fully employed”.
Cafcass is also reviewing the contracts of all agency staff, who typically fill 2% of its 1,175 family court adviser posts. Most will be terminated, except where they are personally approved by operational directors.
“That’s a pure cost control measure,” says Douglas.
One implication of the strain on Cafcass’s resources is its introduction of more duty systems (see p7). But Douglas says Cafcass’s problems “pale into insignificance compared with those of local authorities”.
“The main resourcing issue is whether local authority services can in the long term deal with it [an increase in demand],” he says.
Although not all applications end in a care order, councils may still have to fund and find hundreds, and possibly thousands, of extra care placements if the current trend continues.
Cafcass works on an average of 1.68 children per application, which would equate to an extra 3,360 children involved in proceedings if it was to receive 2,000 more referrals this year than last.
If a care order is granted in 61% of cases, based on the findings of the 2006 review of the child care proceedings system in England and Wales, councils could be faced with finding placements for an extra 2,050 children compared with the previous year. In another 8% of cases, both a care and a supervision order are granted.
With councils spending an average of £40,000 per child per year on placements this could add more than £80m to annual placement costs, equal to almost 1.5% of councils’ spend on children’s social care last year.
These projections are hypothetical and have been calculated to show the potential effect of a longer-term crisis. The full cost will depend on how long children spend in care. But government figures show 18,100 of the 37,200 children under care orders at 31 March 2008 had been looked after for at least two and a half years
John Coughlan, spokesperson for the Association of Directors of Children’s Services and director at Hampshire Council, says a long-term increase in care applications would “represent a significant concern and financial pressure for local authorities”.
He says, though, there is no question that “unnecessary intervention” by local authorities is leading to the increase in cases.
As well as the impact of the baby Peter case, improved joint working among agencies could be identifying “unmet need”, he says, while the recession could also be the “tipping point” for families already experiencing problems.
The Local Government Association has commissioned research into the “resource implications” of the increase, a spokesperson says. Councils would not ask for any emergency funding until they can clearly show the impact, she adds.
A Department for Children, Schools and Families spokesperson says it is “closely monitoring” the rise in applications, but says spending on children’s social care rose by 90% in real terms over the past decade, reaching £5.7bn in 2008-9.
“Over the current three-year settlement we are providing an additional £8.91bn to local authorities and it is for them to decide how much of these resources are targeted at children’s services,” he says.
Since May 2008, councils have also had to pay court fees in section 31 applications of up to £4,825 per case, up from the previous flat fee of £150.
A review, commissioned by ministers on Lord Laming’s recommendation, is examining whether this has deterred councils from bringing cases, but the surge of the past few months might have disproved that theory.
Indeed, Coughlan says: “I have never encountered a decision-making process that has taken any notice of court costs.”
The introduction of the Public Law Outline in April 2008 was supposed to tackle delays in the family courts through earlier intervention, greater use of pre-court assessments of parents and family members, and reducing the number of stages in proceedings.
However, figures from Her Majesty’s Court Service (HMCS) show the PLO did not have the desired effect in its first year; only a third of section 31 cases in county courts were completed within 40 weeks, against a target of 48%, with 48% in family proceedings courts concluded in 40 weeks, against a 56% target.
HMCS said it expected improvements from spring 2009, but admitted the targets were “extremely challenging to meet”, which had been “made more difficult” by the increase in applications in the final quarter of 2008-9.
Coughlan says the detailed pre-court preparation required of social services under the PLO “puts a high burden on local authorities”.
However, he says it’s difficult at this stage to tell if the increase in section 31 applications is causing delays to lengthen.
Another concern is the potential lack of consistency caused by Cafcass’s allocation of cases to duty teams rather than named practitioners.
At the end of July, almost 9% of the section 31 cases on Cafcass’s books were not allocated to named guardians.
Noel Arnold, deputy head of children law at London legal firm Fisher Meredith, says the duty system, though an “honourable attempt” to tackle delays, can cause problems for children involved in care cases.
“It is onerous for a child to meet with a duty guardian(s) and then a formally allocated guardian – at the same time they could also be visited by a social worker, team manager, the foster carer’s supervising social worker, and a child and adolescent psychiatrist,” says Arnold.
“When the guardian is so key, consistency is very important. The same goes for the solicitor for the child who works in tandem with the guardian – consistency is again important because it is possible that one guardian might take a very different view from another.”
Guardians’ body Nagalro has been vociferous in its criticisms of Cafcass’s duty structure, warning initial inspections of paperwork by duty teams may not highlight risks to children that would be identified by deeper investigation.
However, Douglas plays down the criticism, saying Cafcass is involved in the “bulk” of cases from “early on right until the finish”.
Cafcass says all section 31 cases are reviewed on receipt and “actively worked on within local duty systems until allocation to a named practitioner”. This can include attending emergency hearings, liaising with solicitors, screening council safeguarding checks, and prioritising cases according to risk.
Cafcass also points to other causes of court delays, including problems with court listings and the use of expert witnesses.
The rise in applications could also force councils to arrange out-of-authority placements if they lack capacity in their own area.
More than a third of the 42,300 children in foster care – and a similar proportion of the 6,500 in children’s homes – at 31 March 2008 were placed out of area, according to government figures.
The Fostering Network estimates there is a shortage of 8,200 foster families, while Ofsted figures demonstrate spare capacity in the children’s homes sector, with 11,735 registered places as of 31 March 2008.
Kevin Gallagher, chief executive of Bryn Melyn Group, which provides 44 therapeutic care places for children across 28 homes, says the number of young people referred to the company over the past 18 months has increased – as has the complexity of their needs.
This has implications for the location and size of the company’s homes, he says.
“Quite often these young people are not going to be placed with two or three others,” he says. “They’ve also got to be a little bit isolated, maybe in semi-rural locations.”
Pauline Webster, co-chair of the Independent Children’s Homes Association (ICHA) and partnerships director at charity Childhood First, says demand for residential care is rising and it is “not the pariah it was”.
Where in the past few years councils have had a policy of not placing children under 12 in residential care, now they are referring children as young as five or six, she says.
As financial resources are stretched by the increase in care applications, so too are social workers.
John Coughlan says: “Managing and seeing through the process of care is very burdensome on frontline workers. Each one of those cases takes more than a year, and it’s a year of intensive legalistic activity.”
He says a continued rise in care applications will mean that “some of the preventive work will be sure to suffer if local authorities are finding ways to fund extra placements”.
Nushra Mansuri, professional officer for England at the British Association of Social Workers, says frontline staff already report they are “working around the clock, seven days a week” to deal with the increase in workload.
“Cases in court take absolute priority,” she says. “But is enough being done to safeguard other children who need support from social workers?”
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Referral spike puts Cafcass on the spot
The experience of Cafcass’s Cambridgeshire service illustrates the huge pressures placed on frontline services by the increase in section 31 applications.
In March, the service received four care referrals; two months later it received 21.
It was already operating a duty system, introducing it in 2008 when the PLO came in, says service manager Issy Atkinson, who has a team of 14 guardians, most of them working on both public and private law cases.
In practice, the duty system is meant to ensure a guardian is available for all first hearings, and local authorities will give the team “as much notice as possible” when they are issuing new care proceedings.
However, Atkinson says the recent spike in referrals means Cafcass guardians are not able to attend all first appointments.
In Cambridgeshire’s case, its main problem is that 40 miles separate the two courts where care cases are heard, in Cambridge and Peterborough. This means it’s difficult for one duty guardian to attend cases in both courts on the same day.
There are also cases where a practitioner who has attended the first hearing and been appointed as the named guardian will have too high a caseload to hold the case permanently. In these situations, Atkinson will take the case back to court for it to be reallocated, but she will take responsibility for it.
Despite some controversy over Cafcass’s use of duty systems, Atkinson says other family law professionals in Cambridgeshire have accepted it since it was introduced along with the PLO.