The “overwhelming demands” on professionals involved in care proceedings could be reduced by improved practice in the ‘pre-proceedings’ stage and more clarity over options for safeguarding children outside the courts, a recent report says.
The recommendations of the Public Law Working Group (PLWG) – established to address concerns about the impact of proceedings on the growing number of families involved, as well as increasing workload pressures on social workers, lawyers and judges – include best practice guidance and proposed legal changes to shift the emphasis away from court orders.
Sir Andrew set up the PLWG following concerns he stated in November 2018 about the ongoing rise in care order applications with professionals stressed to the point of “collapse”. The steepest increase had occurred between 2014-15 and 2015-16 when applications rose 14% to 14,599. Sir James Munby, President at the time said the system was facing crisis.
No single reason was identified for the rise although a number of factors, including the impact of the Baby P case, had been pushing numbers up slowly since 2008. While case numbers have started to come down from a high in 2018-19, the report notes workload pressures continue to be significant, not least due to the coronavirus pandemic leading to cases taking much longer to get through the system, with Cafcass reporting a record number of 42,719 open cases in February this year.
The group was tasked by President of the Family Division, Sir Andrew McFarlane with identifying ways to ensure children who become subject to care proceedings have decisions “about their future lives [made] fairly and swiftly”, as well as measures to cut case numbers. It included children’s services managers and directors, solicitors, and representatives of Cafcass, the judiciary and government.
Following the launch of its report, Sir Andrew endorsed its conclusions and said he hoped that, given the strong consensus behind the recommendations, they could be “put into effect and begin to make a real difference” after a short implementation period. Some of the recommendations are longer-term and require primary legislation or additional government funding, with a Ministry of Justice spokesperson saying it was carefully considering the report’s conclusions.
Guidance on pre-proceedings
The PLWG found the purpose of ‘pre-proceedings’ (a formal stage entered once a local authority notifies parents its concerns mean it is considering court) should be clearer and that it should be used “at an early enough stage to be effective in addressing the harm identified”.
“Care proceedings are the option of last resort. [The pre-proceedings process] represents a genuine opportunity to work closely with families by offering help and support to address their recognised needs in a bid to negate the need to issue care proceedings,” the report stresses.
The accompanying guidance includes outlines for meetings, assessments and communicating with parents to support this phase, with recommendations for making letters less legalistic and complicated for families to understand.
Cathy Ashley, chief executive of Family Rights Group and member of the PLWG, said the increased support for pre-proceedings work was the most significant aspect of the report for the charity for parents and relatives with children in the child welfare system. As well as highlighting the focus on enabling children to be raised by family whenever possible, she welcomed the emphasis on partnership with parents and providing clarity for families on what they should be able to expect from children’s services, including through ‘mutual expectations charters’.
“In our view, despite partnership being an underlying principle of the Children Act 1989, that partnership and relationship working is what has often got lost, in place of focusing on process and procedures and risk-aversity. The report is a way of trying to shift that,” she continued.
Ashley noted that the language and length of the document were not necessarily accessible to parents but said that Mr Justice Keehan, who led the working group, and Sir Andrew were supporting the charity’s bid to secure funding for families’ involvement in training and disseminating the guidance.
A spokesperson for Cafcass said the service representing children in the courts believed a “culture change” was needed in the family justice system and it supported the PLWG’s approach and report. “We will be reflecting [the recommendations] in our practice tools and guidance to offer greater analysis on the support to families in pre-proceedings, ensuring we share our recommendations with children as early as possible,” they said.
Longer term, the report recommends refocusing the role of independent reviewing officers (IROs) and conference chairs to offer additional oversight outside of proceedings to aid more consistent decision-making, prevent drift in pre-proceedings and help promote the voice of the child.
This proposal was welcomed by chair of the National IRO Managers Partnership (NIROMP), Sharon Martin, who said NIROMP would be holding a ‘community of practice’ event to explore the proposal.
Reverse the declining use of section 20
The working group also scrutinised the use of section 20 of the Children Act 1989 in England/section 76 of the Social Services and Well-being (Wales) Act which (among other things) enables local authorities to accommodate a child for safeguarding purposes without a court order if their parent(s) do not object. The report notes that the use of section 20/76 has fallen at the same time that care orders have risen and identifies an “urgent need to reverse the trend”.
It highlights high-profile cases where the use of section 20 was criticised and the fact that existing guidance is “spread across multiple sources”, leading to excessive caution about the option, even when social workers believed it was appropriate. “Some felt this was leading to a ‘disproportionate use’ of court proceedings and subsequently to more children becoming looked after when it was not necessarily in their best interests,” the report says.
The PLWG published good practice guidance for section 20/76 alongside the report, which includes considerations for different circumstances and ages, advice on consulting with parents, seeking and recording their agreement. It recommends this be implemented across both countries.
The working group’s longer term recommendations include a focus on independent legal advice for those agreeing to section 20 as well as reviewing the funding available for legal aid for families in pre-proceedings. This would enable “more effective participation in local authority planning processes from an informed position…which may ultimately save the taxpayer the cost of care proceedings”.
Ashley said she while further expansion of legal aid would be welcome, there are existing government commitments to extend legal aid to certain parents in adoption and prospective special guardians which have not yet been implemented, and which urgently needed to be so.
Ashley added that the new section 20 guidance was a “useful reference guide, but one in a suite of tools practitioners should think of using,” citing in particular the Supreme Court judgment in Williams v Hackney . In this ruling, Lady Hale highlighted nine key principles for lawful social work practice that clarify issues, including what constitutes parental agreement to a placement, parental rights, and the considerations when deciding how long a child can be placed under section 20, given there is no time limit.
For children and families whose cases do reach court, the working group was particularly concerned about the growing number of short notice or urgent cases and how this varies regionally, matched with inconsistent use of other emergency measures such as police protection, emergency protection orders and urgent interim care orders.
Nationally, 66% of care applications in the 12 months to November 2020 involved short notice hearings. While the report acknowledges that sometimes urgent hearings could not be avoided, “many such applications do not fall into this category” and cited social worker and legal workloads as well as less effective pre-proceedings work causing non-urgent cases to become urgent.
They also found that social work statements “frequently contain little or insufficient evidence of the urgency and why/how the legal test for removal is met” and they recommended that a new short version of the social work evidence template (SWET) for urgent cases that focuses on these issues be used.
The group highlighted Cafcass data indicating short notice cases generally went on for longer with more hearings and involving younger children.
“These hearings give limited opportunity for parents to participate fully in the hearing with legal advice and representation. The child is “behind the curve” as the children’s guardian/ children’s solicitor is likely to have had little, if any, opportunity to make the necessary enquiries before the hearing,” the report says.
The best practice guidance on applications and case management includes local authorities notifying Cafcass in advance of all care and emergency protection order applications so that preliminary arrangements to represent the child can be made. Longer term, the group recommends a protocol be issued to formalise this process.
Looking at care proceedings generally, the group particularly noted the “onerous workloads” of Cafcass children’s guardians and recommended that guardians no longer need attend ‘fact-finding’ hearings. It also said that, for most case management hearings, they should only have to file a position statement, rather than a case analysis.
The group also sought to address a renewed increase in the number of expert witnesses used in care proceedings, particularly independent social workers (ISWs) and psychologists. The report calls for a “shift in culture and practice”, reminding the judiciary, lawyers and social workers that permission to instruct experts should only be granted when necessary and that “professionals who know the family and the child should feel confident about reporting to and advising the court”.
“Social workers and children guardians are expected to have the expertise to make professional judgments and assessments both generally and particularly in respect of the assessment of sibling and parental relationships/bonds, and commenting upon attachment,” it adds.
Nagalro, the professional association for family court advisers, children’s guardians and independent social workers (ISWs) said it welcomed the report’s emphasis on the expertise of children’s guardians in these areas, as well as its focus on the voice of the child and relationship-based practice. It said there had been an “unwelcome trend” of the guardian’s role being diluted in recent years into often analysing plans based on assessments and reports from others.
The association said: “If the recommendation is to be properly implemented, children’s guardians will need to be given the time, space and the resources to return to a much more ‘hands-on’ way of working with children and families, and to acquire a deeper knowledge of the individuals involved in their cases.”
This may mean, for example, that guardians would wish to attend fact-finding hearings to hear evidence for themselves. Nagalro therefore urged those involved to consider the report as a whole: “If the court is to take full advantage of the expertise available to it from the children’s guardian, it must be willing to allow them to use their professional judgment and expertise to decide how their time is best employed.”
The association also did not take issue with the proposals about the role of ISWs as expert witnesses and said the recommendations were “simply reiterating the current legal position”. However, it said that all practitioners should consider each child and their case individually and that ISWS will remain a “valuable resource for the court”, for example when specialist knowledge, cultural and linguistic abilities are required. Nagalro believes ISWs would continue to meet the criteria of being ‘necessary’ when assessments are required that social workers and guardians struggle to complete within the court timetables.
The PLWG made recommendations and produced guidance covering a number of other areas, including:
- Highlighting the flexibility in the 26-week time limit for proceedings which it says should be considered by judges if further time is required to determine the plan or placement in the best welfare interests of the child.
- Particular attention being given to cases involving newborn babies and pre-birth planning, including the potential role of Cafcass pre-birth and avoiding short notice hearings when families are known to authorities.
- Scrutinising the increase in some parts of the country of children being placed at home with their parents on care orders. “The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings,” the report says and unless it is necessary to protect the child, alternative means of providing support should be used. The PLWG acknowledged that distrust of the effectiveness of supervision orders to support family reunification had likely led to the overuse of care orders at home. It recommended a review of the legislation and guidance on supervision orders, which it said could be considered as part of the independent review of children’s social care.
- Putting into practice guidance on special guardianship orders first published in June last year ahead of the rest of the report due to the “pressing need” for guidance in this area.
Ashley reiterated that it was important practitioners did not consider the PLWG guidance in isolation. For example, in relation to special guardianship orders, she would “place much more emphasis on support, and ensure we look as well at the parliamentary taskforce report on kinship care and the family and friends care statutory guidance.”
Cafcass told Community Care that the service will “work with our local authority partners to examine support for care orders at home, minimise the use of experts, and build clarity when going to court about why an order is being sought, why now, and what difference it will make.”
“The Public Law Working Group was established before the pandemic, and the recommendations for reform are needed now more than ever as children and their families are subject to further delays,” it continued, and called for reform to be implemented as soon as possible.