Law Society demands clear guidelines on 26-week limit for care proceedings

The Law Society has demanded clear guidelines, "from the outset", as to which child protection cases are expected to take over 26 weeks when the Government's proposed deadline comes into effect.

The call was made in written evidence submitted to the Justice Select Committee on the draft Children and Families Bill, which contains the Government’s proposed legislation for the deadline.

The Law Society said: “Care proceeding cases are often complex, dealing with vulnerable children and parents, requiring concomitant assessments, sometimes running in parallel with concurrent criminal proceedings….

“Cases involving complex fact-finding cases, those involving large families or absent families members, or where the child has complex medical needs (such as disability), will rarely be resolved in under 26 weeks.”

The proposed legislation allows for extensions of up to eight weeks in exceptional circumstances.

Chancery Lane said it was essential that guidance on the consistent application of judicial discretion be given, “whether through a Practice Direction or other means, as failure to do so could lead to satellite litigation based on process, rather than substance”.

The Law Society added that for the 26-week time limit to become widely effective, other provisions in the Family Justice Review would need to be implemented, including judicial continuity, and speedy processes at the Legal Services Commission for authorising legal aid and "especially" publicly-funded experts’ fees.

“Failure to do so could result in placements breaking down or in an increase in litigation by parties who might feel short-changed by the process,” it argued.        

In the submission Chancery Lane said it had misgivings about the fact that the 26-week limit was already being applied in some courts, with judges appearing to anticipate legislation which had yet to be approved by Parliament.

The Law Society did accept that it was proving possible to timetable some cases within the period.

However, it added that it was “difficult to provide anything other than anecdotal evidence with regards to the progress that has been made in achieving the 26-weeks time limit without access to HMCTS's CMS data”.

Chancery Lane’s submission also covered whether the judge’s role in relation to care plans should be restricted to considering only the permanence provisions.

The Law Society rejected this approach and called for a range of amendments to be made to the legislation.

“As a matter of principle, and in the best interests of the children whose future is to be decided by the court, an independent judiciary should not have its hands tied when it comes to the consideration of care plans,” it said.

Chancery Lane added that if the court took the view that it required more information or clarity about any element of a care plan which did not come within the core elements identified in legislation, “it must be able to seek that information or to ask for (and manage) a discussion with the parties at the hearing”.

It said judges should always be provided with the entire care plan. “To do otherwise would not be sensible,” it argued.

The Law Society continued: “If the quality of social work continues to rise consistently, then a reduction in the courts scrutiny role will happen organically. Independent Reviewing Officers require a comprehensive and fully considered Care Plan to discharge their role in ensuring that it is properly implemented.

“Limiting Guardian input into care plans and limiting judicial scrutiny of care plans might be a false economy and create delays down the line once the full information is provided by the Guardians final assessment and the final scrutiny of care plans.”

The Law Society submission also covered: mediation; child arrangement orders; expert evidence; and divorce.

The submission, which can be viewed here, came shortly after three London boroughs claimed that a pilot had more than halved the duration of care proceedings cases – including adoption – to below the Government’s planned limit of 26 weeks.

Westminster City Council, the Royal Borough of Kensington and Chelsea (RBKC) and Hammersmith & Fulham Council (H&F) said they expected the scheme to save more than £1m a year.

Philip Hoult