Although many professionals broadly support the aims of the Public Law Outline, there is concern about the pre-proceedings process, according to a study. Anna Gupta reviews the findings
Title: An early process evaluation of the Public Law Outline in family courts
Authors: Patricia Jessiman, Peter Keogh and Julia Brophy
Institutions: Patricia Jessiman and Peter Keogh are at the National Centre for Social Research. Julia Brophy works at the Centre for Family Law and Policy, University of Oxford
Available: The study is available from the Ministry of Justice website
The family justice system in England and Wales has, in recent years, undergone much change, including the implementation of the Public Law Outline (PLO).
After a trial period in 10 areas, the PLO was introduced in April 2008 to manage care and supervision order proceedings under section 31 of the Children Act 1989.
It requires more emphasis to be given to preventing cases from going to court by the greater use of pre-proceedings assessments of parents and family members.
Before issuing proceedings, the local authority is expected to provide clarity for parents about their concerns in a "Letter before Proceedings" and meet them and their legal representatives.
Once in proceedings, the PLO reduces the stages a case goes through from six to four. These are the first appointment, case management conference, issues resolution hearing and final hearing.
This research study is part of the Ministry of Justice Research Series and aims to describe and evaluate the process of implementation of the PLO in the family justice system.
The remit of the study was not to evaluate whether the PLO "works" for children, but to focus on process and timing. The two objectives were:
● To gain an understanding of the process of implementing the PLO and its impact from a range of practitioner perspectives.
● To determine the extent to which the PLO and the statutory guidance are being implemented in the planning and management of section 31 applications for care orders in three initiative areas.
The study used both qualitative and quantitative methods and took place in three areas where the PLO was trialled from June 2007. Specifically, the study comprised:
● A quantitative investigation of 53 case bundles from three county court care centres.
● Individual and group interviews with 72 key practitioners, including judges, magistrates, lawyers and children's guardians.
● Observations of 16 key hearings in courts in the three areas.
The researchers explain that the case bundle analysis consisted of a small non-random sample of mostly completed cases from an early stage of the implementation, so the results should be viewed only as indicative and not as representative of PLO cases.
Findings and Conclusions
Although the study did not focus on the content but on the process of the cases, an analysis of the profile of the children and families in the quantitative part of the study indicated similar patterns to those of other studies (Brophy, 2006; Masson et al, 2008).
All the cases involved multiple allegations of harm to the children and failures of parenting; there were no "single issue" cases or evidence of "borderline" applications.
The authors suggest further examination of a larger sample is necessary to assess whether pre-proceedings work under the PLO has made an impact on the types of cases resulting in care proceedings.
The PLO aims to front-load the process by increasing assessments before proceedings start. But 40% of the cases examined did not have a completed core assessment and only four of the 53 cases included a kinship assessment. Few of the bundles included a Letter before Proceedings.
Findings from interviews with key practitioners indicated that, although the Letter before Proceedings may clarify the reasons for going to court, it may have little effect in avoiding proceedings. It was felt this was partly due to the limited legal advice available to parents.
Further, children are not represented by guardians or solicitors at this stage.
Most of those interviewed expressed concern that the length of the pre-proceedings work may be increasing, and possibly lengthen the overall time that children and families experienced local authority interventions. This could result in some children remaining longer in harmful home environments.
Local authority compliance with the filing of pre-proceedings documentation varied. All cases started with a social work statement being filed and most included a social work chronology.
However, only 21% included minutes of a family group conference and only 6% a "Timetable for the Child".
The researchers conclude that poor local authority compliance might have undermined the PLO's objectives. They are unable come to conclusions about the underlying reasons for this, and recommend further study.
The PLO requires children's guardians to submit initial, interim and final analysis and recommendation reports during proceedings. Only nine of the 53 cases included an initial report from the children's guardian.
Findings from the qualitative section of the study suggested that the timing of this first report needed review, as a meaningful analysis before the first appointment was likely to be difficult due to time constraints.
Generally, the staged case analysis by guardians was welcomed. However, the lack of availability of guardians in two of the three areas had led to concerns about limited representation of the child's interests.
In terms of compliance with the timescales, most cases kept to the required timescale of a first appointment by day six. However only one-third had the case management conference by day 45 and just over a quarter had an issues resolution hearing before 25 weeks.
Adjournments and additional hearings often took place at these two stages, resulting in tension between the perceived best interests of the child and "fit" with the requirements of the PLO.
The researchers found much variation in terms of the application of the PLO by the judiciary, with some evidence of inflexible adherence to the timetable.
They concluded that skilful application required an ability to depart from the PLO timetable when the needs of the case required this.
The PLO requires that cases be completed in fewer than 40 weeks, and this was achieved in 70% of the 43 completed cases in the sample. But this was not a random sample and wider conclusions cannot be drawn about the duration of cases under the PLO.
Most respondents interviewed felt that the PLO had not speeded up care proceedings, but had possibly led to fewer adjournments and more accurate and reliable listings for final hearings.
Reasons that led to delay included the local authority filing key documents late; changes in social work staff; delays in obtaining expert evidence; and complex issues, such as parental substance misuse, taking longer to address than the PLO allows.
All professionals interviewed broadly supported the aims of the PLO, including more efficient use of court time and avoidance of unnecessary delay for children.
When implemented properly, respondents identified some potential benefits as an early focus on the key issues of the case; clarification of expectations for all parties; earlier identification of kinship carers; and active case management by judges and magistrates.
But concern was expressed about the pre-proceedings process, including parents' ability to access and make use of specialist legal advice; the timing and use of the Letter before Proceedings; the effectiveness of the PLO in preventing cases from unnecessarily resulting in proceedings; and the possibility that the PLO was in fact resulting in delays in cases being brought before the courts.
Serious concerns were expressed by professionals about the welfare, voice and human rights of the child being compromised during the pre-proceedings stage. An evaluation of the pre-proceedings stage of the work is a key recommendation of this study.
This study provides a useful analysis of the early implementation process of the PLO. However, as the researchers suggest, the study has limitations and must only be the start of a wider evaluation of this initiative.
Apart from the implementation of the PLO, there have been changes to the funding of solicitors involved in care proceedings and a significant rise in the fees for local authorities issuing proceedings.
The drop in care proceedings that resulted in many areas after the PLO was implemented and then the significant rise in numbers after media reporting of the death of Baby Peter highlights the impact on local authority decision-making of the wider policy and political context.
This study reinforces the urgent need to review the impact of the PLO on local authority practice, particularly at the pre-proceedings stage.
This could not only identify obstacles to the implementation of the aims of the PLO, but the possible negative impact on vulnerable children.
Anna Gupta is senior lecturer in health and social care at Royal Holloway, University of London
Voice of the child: Children are not independently represented at the pre-proceedings stage; attention must be paid by practitioners to ensuring that the welfare, voice and rights of the child are central to decision-making.
Assessments, interventions: Practitioners need to be aware of the risk of drift and delay that could be prejudicial to children in the pre-proceedings stage.
Skilful application of PLO: Compliance with the PLO needs to be seen as a means to an end, not an end in itself. Skilful application includes an understanding of when the needs of the child require a departure from the PLO.
Links and Resources
The Public Law Outline
The study conducted by Brophy that reviews the research on care proceedings
A study providing baseline data on care, conducted by Masson and colleagues
Brophy J (2006), Research Review: Child Care Proceedings under the Children Act 1989, DCA Research Series 5/06
Massin J, Pearce J, Bader K, Olivia J, Marsden J and Westlake D (2008), Case Profiling Study, MOJ Research Series 4/08
This article is published in the 13 August issue of Community Care magazine under the heading How is the Public Law Outline being implemented?