How the Public Law Outline is affecting care cases in the wake of Baby P

Why has the number of care applications for children fallen even though incidences of abuse have not? The answer could lie with how the care system works, writes Sally Gillen

Outsiders may have been puzzled when reading reports about the decision not to take Baby P into care but to place him with his mother’s friend, a childless, 23-year-old woman who did not take seriously social services’ concerns about the little boy.

But what may have seemed a risky, misguided, course of action based on a specific set of circumstances could also reveal how fundamental changes to the way the care proceedings system functions is affecting social work practice on the frontline. Figures from the Children and Family Court Advisory and Support Service support this premise. They show that between 10 November and 5 December 2006 and the same period in 2007 the number of care applications fell by nearly 15%.

Those with inside knowledge of how the child protection system works were unsurprised that Baby P, who had been on the child protection register, was in effect left unprotected. “Children’s lawyers are not surprised by the Baby P case,” says London-based children’s solicitor Laura Coyle. “The fact is that there has been no drop in the amount of bad parenting or abuse, no reduction in the amount of neglect, and yet the number of care applications has dropped.”

Public Law Outline

The issue hit the headlines again this week after news of up to seven child deaths in two years in Doncaster. Experts have been raising fears that children at risk are not receiving the legal protection they need because of two significant recent changes to the operation of proceedings, an integral part of the child protection system. In April 2008, the Public Law Outline (PLO), a system for case management, came into force in England and Wales, and in May the cost of care proceedings was transferred from the courts service to councils, following a decision by the Ministry of Justice.

The PLO, which replaced the protocol for Judicial Case Management in Public Law Children Act cases, was piloted in 2007. It aims to reduce the need for care proceedings and to speed up those that are necessary. A key change to the system is that councils must do much more of the work before the case gets to court, including kinship and residential assessments, the idea being that the case will then be dealt with more speedily once it gets to court.

Despite the laudable aims behind the new system nine months in there is criticism that the PLO is so bureaucratic that it is causing delays at the start of the process. Preparation for a case now involves so much paperwork there are concerns that hold-ups are occurring because councils are taking longer to bring cases or are seeking alternatives to care to avoid the resource-intensive and expensive court process.

Bad option

One guardian, who wishes not to be named, says the PLO is creating a mindset that care is a bad option. She says an effect of this is that some children are staying in foster care placements for long periods or other options such as friends and family care, as in the Baby P case, are being used inappropriately. It is a worrying development because there will always be some children for whom care is the best option, she says. Research commissioned by the Department for Constitutional Affairs and published in May 2008 has also shown that councils do not take unnecessary care proceedings, which calls into question the idea that there are cases that can be dealt with by other means.

Lengthy delays in care proceedings have been a long-standing problem, thought in many instances to be caused by cases being brought to court before council pre-proceedings work is complete. About 60% of care proceedings cases involve children younger than six, which take, on average, one year to complete. A review of care proceedings in England and Wales, published in May 2006, found that it took, on average, 51 weeks to process a care order through a care centre and 42 weeks in the family proceedings court.

Coyle doesn’t believe that the PLO system has led to a more streamlined pro­cess. She is yet to handle a case that has been completed within the desired 40-week timeframe.

Bureaucratic straitjacket

Lawyer Edward Lloyd-Jones, who has practised in public law cases since the mid-1980s, believes the PLO should be scrapped: “It is misconceived and seeks to put a bureaucratic straitjacket on human complexity.” He says councils are now expected to complete five documents before a case even gets to court: a schedule of proposed findings, an initial social work statement, a care plan, an allocation record and a timetable for the child. The requirement that assessments are now carried out in-house by councils does not necessarily speed up the process.

“Where assessments are carried out under the eye of the court, during proceedings all parties can contribute to the identification and instruction of the expert and thereby fully participate,” Lloyd-Jones says. “The danger of in-house assessments is that they may not have the confidence of all parties nor subsequently of the court, which could lead to further delay.

“Of course delay should be avoided but the PLO does not help with that. The causes of this are to do with a lack of social workers, shortage of experts and so on. You cannot wish those away by using an administrative process. It does not address the realities and it is dispiriting for everyone working in the system to complete mountains of documents.”

Reams of paperwork

Dominic Tumelty, service manager of the early intervention and family support service at Stockport Council, agrees. “The reams of paperwork that now fall to a local authority are unacceptable. Duplication abounds and there is a question about how much of it is read by the parties. In real terms it is the social work statement, assessment and chronology that people turn to. The time taken by colleagues in legal terms is now dangerously high. If I take a decision that a matter needs to go to court, the solicitor may need two weeks to prepare papers, during which time the child is at risk.”

In addition to the changes introduced through the PLO, councils are grappling with the effects of the MoJ decision to transfer the full cost of proceedings from the courts service to councils.

Before the change, experts, including the children’s commissioners for England and Wales, raised concerns that the increased financial burden could discourage councils from starting proceedings. Nagalro, the professional association for guardians, has also slammed the move as giving a perverse incentive not to initiate proceedings. Cases that used to cost £100 can now cost £4,000. The government transferred £40m to councils to meet the added expense but there has been criticism about the way the money is allocated and that it is not ring-fenced.

Lack of consultation

Less than six months after the change, four councils – Hillingdon, Leeds, Liverpool and Norfolk – sought a judicial review of the decision. They argued that they had not been consulted properly and that, in deciding how to distribute the cash, the government had not considered how many cases authorities had to deal with. Their challenge failed and the High Court ruled that “the overwhelming evidence is that local authorities do not, and would not, refrain from taking proceedings for financial reasons”.

There is support for this view from Tumelty, who says his authority still has the same number of proceedings, despite the fee hike. But he adds: “As the money runs out, other areas become vulnerable to cuts, everything from building maintenance to young carers support.”

Impact on budgets

It is undeniable that the impact on councils’ budgets is significant. A snapshot survey by Community Care shows that councils are facing huge increases in court fees. In Sunderland, the council spent £32,000 on care proceedings between March 2007 and April 2008, but in the seven months between May and December 2008 it had spent £116,000. At South Tyneside Council £18,477 was spent on care proceedings between 2007 and 2008. This shot up to £89,337 from May to December 2008.

The combined impact of the fee changes and the resource-intensive PLO has led to fears among practitioners that councils will be reluctant to initiate care proceedings or seek to use alternatives to full court care proceedings, such as voluntary care under section 20 of the Children Act 1989 (see box). Baby P was placed with a friend of his mother for five weeks, even though a foster placement had been found for him.

One problem that can arise when parents agree for their children to be accommodated voluntarily under section 20 is that they can choose to withdraw their co-operation at any time, says Lloyd-Jones.

Inevitable question

In the aftermath of the Baby P case and the inevitable question about why such a vulnerable child was placed with a friend of his mother, Nagalro has raised concerns about the care proceedings system. It is warning that the changes mean cases like Baby P are more likely to happen.

In a letter to children’s secretary Ed Balls in November last year, Nagalro chair Ann Haigh called for action on several issues: to reverse the increase in court costs, review the number and rate of increase in placements with friends and family using section 20 accommodation and to look again at the burdens introduced by the PLO.

We must now wait to see how the government responds.

Section 20 rule

Under section 20 councils can provide accommodation for children if the person caring for them is prevented from providing suitable accommodation or care.

There are concerns about these arrangements because without court scrutiny cases can drift and children have no right to an independent advocate: guardians are only appointed once care proceedings are initiated.

The dangers of using family and friends carers are that they may collude with the parents, leaving the child still at risk.

The baby P case rise

In the days following the conviction in November 2008 of Baby P’s mother, boyfriend and their lodger, the number of care applications predictably rose.

According to Cafcass figures, between 20 October and 9 November last year (20 days before the conclusion on the Baby P case) there were 453 care applications. In the 20 days following the case there were 652.

Review of the Care Proceedings System in England and Wales

Care profiling study

Expert guide to Baby P

The Doncaster child protection cases

This article is published in the 15 January 2009 issue of Community Care under the headline “A public dysfunction”