The Peter Principle

The legal system is struggling to cope with the flood of child care cases being brought after Baby Peter. Grania Langdon-Down reports.

The horrific death of Baby Peter led to a political and media outcry about the state of child protection. Referrals of vulnerable young people to councils' children's services departments have rocketed, matched by a sharp rise in applications to take children into care.

A year after his killers were convicted of his death from appalling abuse, how are those working in the courts, local authority legal teams and private practice coping with the so-called 'Baby P effect'?

District Judge Nicholas Crichton, of the Inner London Family Proceedings Court, says they are “swamped”. There had previously been a dip in care applications following the introduction of the Public Law Outline (PLO) initiative in 2008, which required local authorities to do more preparatory work before going to court, and the decision by the Courts Service to charge local authorities the full cost of proceedings.

“Then Baby P came and caused this flurry of cases,” he says. “In January to August this year, we had a 58% increase in care applications over the same period in 2008 without one extra judge or an extra hour of court time.

“We are at full stretch. Are we cutting corners to cope? I hope not. However, the pressure is intense. We are constantly being asked why can’t you do this or that. I don’t think civil servants or politicians understand what it is like. My office is piled high with papers on which I have to produce judgments or read before I go into court.”

However, despite the sharp increase in applications, he does not believe it is the result of councils becoming overly cautious and bringing cases that do not meet the threshold for care proceedings.

Crichton says: “It is just the opposite. There may be one or two cases where they are being hyper-cautious but my view and that of most of my colleagues across the country is – why didn’t you bring these cases sooner?”

Heightened anxiety

Graham Cole has specialised in local authority child care work for 25 years, first at Bedfordshire County Council and, for the last two years, as principal solicitor social services at Luton Borough Council. He became chair of the Solicitors in Local Government’s child care lawyers group in April.

He says that, since Baby Peter, social workers have become much more anxious. “They ring me to get reassurance about the consequences of doing something or not doing it. Have we grounds to take the matter before the court? But we are rarely criticised for bringing cases too early.”

Solicitors working in private practice see a similar pattern. Caroline Little, co-chair of the Association of Lawyers for Children (ALC) says: “The threshold levels for intervention are very high in this country and we leave children at home far too long.

“We know referrals to local authorities have gone up massively. But the rise in proceedings isn’t caused by councils bringing cases that shouldn’t be brought. Our members are now dealing with cases that should have been brought to court two or three years ago.”

When local authorities were under pressure from the PLO and court fees, they were only bringing cases which were “crystal clear”, says David Jockelson, a consultant solicitor with East London law firm Miles & Partners. “It is undoubtedly the case that they are now bringing greyer cases to court.

“While I haven’t had any which I thought were completely unmeritorious, there is a feeling that social workers don’t want to take risks – they want the judge to take the risk. If the court refuses to remove a child, the social worker is quite relaxed – ‘we can live with this decision because if it goes wrong it is someone else’s responsibility’.”

He says local authority legal departments are “drowning” under the workload. “I don’t envy them. We are getting cases coming to court with rather ragged preparation and I don’t think the courts are as understanding as they might be.”

Recruitment challenges

Cole says he is lucky in having a “very experienced, stable team” of five lawyers and a legal assistant. “We have a good relationship with the social workers on the ground and the senior managers. But when I was at Bedfordshire and it was in special measures, you could be dealing with four or five different social workers during the course of a case.”

Liverpool City Council is currently running a big campaign to attract new social workers. “Keeping them is another matter," says Assistant City Solicitor Ann Molloy, who is responsible for the children, families and education legal department.

She has 19 lawyers in her team but only four or five specialise in child care. Each care case that goes to court is allocated to two people – a solicitor and a legal assistant who sits in court and looks after the files. “They are swamped. Our work has gone up threefold. For the first time, I have had staff saying we are having difficulty coping and they are coming in unpaid on Saturdays to keep up.”

Uma Mehta is chief lawyer at the London Borough of Islington and chair of the Law Society’s children law sub-committee. Alongside their own child protection work, her eight-strong team of child care lawyers, backed by five locums, is also responsible for 35% of the child care work in neighbouring Haringey, which was severely criticised for its care of Baby Peter, and a small percentage for Hertfordshire County Council.

“We started doing the work for Haringey in August 2008,” she explains. “They had an overspill of work and we put in a bid for it. We were successful and started on a small scale but then it kicked off big time after Baby Peter.”

What are the risks for councils having to take on too much work?  Do corners end up being cut? “I would like to think not,” she says. “But that has to follow if people are over-stretched.”

Cole says they studied the Baby Peter serious case review to make sure they were meeting its recommendations in relation to legal services, looking carefully at how they give advice, making sure it is in writing and goes out as soon as possible after meetings.

He says: “No one sets out to cut corners but the volume of work means that it isn’t always possible to do things as thoroughly as people might like or within the time scale that suits everyone. Sometimes it feels you are spending all your time battling with your own side over finance; who is going to do what assessment; how quickly can this be done.  You have to stand back sometimes and say – we are on the same side here.

“I am conscious that, with all the pressures on the system, there is a danger that we have lost sight of the children in all the arguing and that is having an impact on everyone’s morale.”

Cafcass in the spotlight

One major area of concern that unites judges and practitioners is Cafcass and the lack of court-appointed guardians to take on a case from the start and see it through to the conclusion.

Temporary emergency measures – to be reviewed next April - have been introduced after agreement with Sir Mark Potter, the President of the Family Division, so that duty Cafcass teams are operating a “triage” system, assessing and prioritising cases as they come in.

There are 1,200 guardians and their caseloads have gone up to between 15 and 25 cases each, from the guideline of 12. After strong protests, ministers have dropped plans to amend legislation so Cafcass could switch guardians between cases to cut delays. They are now considering amending court rules, extending the emergency measures and consulting further with stakeholders.

District Judge Crichton is appalled that children may no longer have the continuity of one court-appointed guardian.”‘Cafcass say they are getting all their cases allocated. But what they are doing is allocating cases to guardians who already have a full case load and can’t start work on the new one for several months. It is giving a false picture.

“They have a duty to provide a guardian who will be the voice for the child and so the child knows they have a champion to whom they can turn. I believe this watered down version completely undermines everything that has been built up over the last 18 years. It is that serious.”

The Interdisciplinary Alliance for Children, which includes the ALC, the Professional Association for Family Court Advisers and Independent Social Work Practitioners (NAGALRO), the Law Society and the Family Law Bar Association, came together to protest at the plans.

Little says: “We are extremely relieved that the proposed legislative changes have been dropped. Cafcass has been distracted from its court advisory service and needs to engage with children and family solicitors and the court service.”

Doing their duty

Little has seen first hand the problems caused by the duty system. “I know a case where a nine year old girl is still at home six months into proceedings. She has been interviewed by a duty guardian and now a new one has been appointed and she will have to go through everything again. This is totally unacceptable.”

“Guardians are one of the best things about the whole child care system,” says Jockelson. “They are an absolute safety net, a consistent voice among endlessly changing social workers – being told a guardian won’t be appointed to each case is a catastrophe.”

The Law Society has issued guidance that solicitors representing children where a guardian has not  been appointed must not give social work opinions in court. Jockelson says: “If you have a teenage client you can take instructions from them and convey them to the court but you can’t make a judgment whether their wishes are in their best interests.”

Despite the criticism of judges and lawyers, Cafcass, which has received an extra £1.6m in funding, denies it is in “meltdown”.  Chief executive Anthony Douglas says some agencies are partly to blame for the steep rise in applications because they have lost confidence in their own professional judgements and assessments.

He defended the duty scheme in The Times: “We simply can’t organise a single practitioner for every case. In some cases we may have to sacrifice the continuity of one appointed guardian to prevent delay.” But he admitted they were struggling and there was a crisis with a gap between demand and resources, but maintained that “individual cases still receive attention”.

Legal aid pressures

For private practitioners, there are the added pressures caused by legal aid reforms which have prompted highly regarded firms and experienced individuals to pull out of this field.

The proposed new rates for advocacy work are “laughable”, says Jockelson. “You wouldn’t get a plumber to do three hours work plus travel for £96. And the situation will become untenable if the Legal Services Commission goes ahead with best value tendering next year.”

However, Little says the ALC worked very hard with the Law Society and Bar Council to persuade the LSC to improve the advocacy rate. “The government can’t be seen to be pulling the plug on child protection and having wrong decisions being made for children,” she says.

However, she is concerned that, because the fixed fees being offered for family legal aid work do not reflect the quality of work that is done and there is no longer any uplift for being on the Children Panel, there is evidence of poor quality solicitors taking on cases with no specialist knowledge. “We even heard of a receptionist running one case,” she says. “Everywhere I go, people say the quality of representation for parents has deteriorated.”

A question of resources

So what can be done to improve the situation?

For Mehta, more resources must be ploughed into the system. “The government also needs to look at legal aid and Cafcass and there mustn’t be cuts. It is an absolute Article 8 right that a child has a right to a family life. If caseloads continue to increase, we would have great difficulty in providing that stability for a child.”

For Jockelson, the agenda is clear: “We need to stop attacking social workers who are doing one of the most important jobs in society and train and pay them better. Family legal aid needs to be protected and there must be more resources for the courts.

“Everyone is being run ragged and it is important to remember that, despite the extraordinary pressures, people are keeping up pretty good standards – but how long can that last?”

Grania Langdon-Down is a freelance journalist