Care proceedings delays reduce but 26-week target still missed in most cases

Care proceedings are being completed more quickly in England and Wales, but their average duration still far exceeds the 26-week statutory target, official figures have shown.

Cases where councils applied for a care or supervision orders that were completed in April to June 2024 took an average of 41.2 weeks, down from a recent high of 44.8 weeks in January to March 2023, when just a quarter of cases were disposed of within 26 weeks.

This figure has risen since but, as of April to June 2024, just over two-thirds of cases (68%) exceeded the statutory limit, according to the Ministry of Justice’s latest quarterly statistics on the family courts system.

The data also showed the number of applications for High Court orders to deprive children of their liberty – often in unregistered placements – were far outstripping those for orders to place children in secure homes in 2024, with the latter having declined significantly since 2021.

Progress against the 26-week target

The Children and Families Act 2014 introduced the 26-week limit for courts to dispose of applications for care or supervision orders, in order to provide certainty for children. While courts may extend the timetable, this should not be routine, and they must consider the impact on the welfare of the child in doing so.

Case durations fell following the introduction of the law, reaching 26.2 weeks on average for those completed in October to December 2016.

However, they then rose steadily on the back of a spike in application numbers from 2016-18 before increasingly sharply during the pandemic as the family courts struggled to progress cases.

Relaunch of public law outline to tackle length of proceedings

In January 2023, the president of the family division of the High Court, Sir Andrew McFarlane, “relaunched” the public law outline (the PLO), the procedures governing care proceedings, to tackle the duration of proceedings.

This involved minimising the use of experts witnesses, keeping the number of hearings to three per case and limiting the court’s decision-making to whether the care or supervision order threshold was met, permanence provisions, contact arrangements and final orders.

Since then, average case lengths have fallen steadily. However, they remain far off the 26-week target, as the MoJ figures show.

‘Unacceptable backlogs’ remain

At the end of July 2024, Sir Andrew acknowledged that progress had been made but said that it had been “slow”, and that “unacceptable backlogs” remained.

Sir Andrew said he planned to “reinvigorate” the PLO relaunch this autumn, including through setting targets for improvement.

Sir Andrew McFarlane, president of the family division of the High Court

These would include improving the use of the issues resolution hearing (IRH), the second hearing in a case. IRHs are designed to identify and narrow remaining issues in the case and, potentially, resolve them, avoiding the need for a final hearing.

The president said he had been told that, in some areas, less than 5% of cases were resolved, or substantially resolved, at the IRH, “with the result that 95% of cases go on to a final hearing which may be listed many months hence”.

He linked this to judges sometimes having four or five IRHs listed in a single day, preventing them from focusing on individual cases.

Squeezing issues resolution hearings ‘a totally false economy’

“To undertake an IRH, a judge must be given sufficient time to prepare the case as if preparing for the final hearing and the listing should be sufficient to accommodate the hearing of short evidence if required,” he added.

“Not to allocate time at the IRH stage is a totally false economy given the delay that will then follow, no doubt with further hearings, and the listing of a much longer final hearing in due course if the case remains contested.”

Sir Andrew added that some court areas may be “struggling to achieve the change of local culture that is required by the PLO relaunch”.

Targets for speeding up proceedings

In April this year, the Family Justice Board, the partnership of government, council leaders, Cafcass and the judiciary that oversees the system, set the following targets for speeding up proceedings by 31 March 2025:

• No open public law case should be taking longer than 100 weeks.
• Care and supervision cases should be taking an average of 32 weeks.
• At least 81% of all new cases should be completed within 26 weeks.

In response to the MoJ data, the Association of Directors of Children’s Services said progress towards the 26-week target likely reflected the impact of the PLO relaunch and improved pre-proceedings work by councils, among other factors.

The chair of the ADCS’s families, communities and young people policy committee, Helen Lincoln, added: “Reducing unnecessary drift and delay in the system is important, however, our main aim should always be meeting children’s needs, even if this falls outside the 26-week limit.”

DoL order applications far outstripping those for secure orders

The MoJ figures also revealed there had been five times as many applications to deprive children of their liberty under the High Court’s inherent jurisdiction (590) as there had been applications for a secure accommodation orders (109) in the first half of 2024.

Deprivation of liberty orders, previously rare, have become commonplace in recent years as councils have struggled to find appropriate placements for children with very complex needs.

However, they often involve placements in unregistered settings – which are not monitored by Ofsted – though in such cases the court usually requires the provider to register the service rapidly.

Lack of secure children’s homes

One of the reasons cited for the rise of DoL orders has been the severe shortage of capacity in secure children’s homes, whose functions include accommodating children under secure orders. These are for children with a history of absconding who are likely to suffer significant harm if they abscond again.

The number of children accommodated in SCHs in England and Wales on secure orders fell from 96 to 72 from 2018-24, according to official data.

This is despite the number of available places in homes being relatively stable during that time, numbering 220 in both 2018 and 2024, with about 105 places contracted to the MoJ for use for young people who have committed offences, during this time.

‘Demand far outstrips supply’ of children’s home beds

The MoJ family courts data revealed a significant drop in the number of secure orders applied for by councils in recent years, from 404 in 2021 to 319 in 2023. Were current application rates to be maintained in 2024, the yearly total would be about 218.

For ADCS, Lincoln said: “Secure children’s homes offer intensive support to our most vulnerable children and young people at times of extreme crisis or distress, but many local authorities report major difficulties sourcing a placement.

“Demand for a bed far outstrips supply, despite local authorities only making a handful of placements a year which may be a reason for the decline in the number of applications being made.”

She added that applications for DoL orders were always a “last resort” to “manage complex mental health presentation and high-risk behaviours” due to lack of secure beds and inpatient mental health provision for young people.

Children placed in ‘illegal’ provision

The MoJ figures also showed that, of DoL applications made in July to September 2023, final orders had been made in 269 cases. Of these, 67 children were still subject to an order over a year after their first order was made, a point highlighted by sector research body the Nuffield Family Justice Observatory.

Its director, Lisa Harker, said: “Deprivation of liberty orders were only ever meant to be a last resort used, for example, when a place in a secure children’s home was not available for a child a risk of imminent harm. Now they vastly outnumber applications for registered secure accommodation.

“Around half of children on deprivation of liberty orders are being placed in unregulated (and illegal) provision – and this latest data shows for the first time that children are often trapped in these placements, with a quarter still subject to a DoL order 12 months later.”