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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