Crisis in infinite courts
The President of the Family Division, Sir James Munby, this week warned of a "clear and imminent crisis" as a result of the rise in care cases. Andrew Pack, who blogs as Suesspicious Minds, looks at what the judge had to day.
The President of the Family Division has published his 15th View from the President’s Chambers, and it is a doozy. We waited a long long time for the 14th, but the 15th came soon after it.
It has been pretty apparent for a long while that the number of care proceedings has just continued to climb from the post Baby P figures, which at the time everyone thought was a temporary surge in caution and new referrals and would eventually settle down. (Back then it went from just over 6,000 per year, to around 8,000 per year.) It didn’t. There was a very short period when the numbers dipped, but those were clearly attributable to the issue of the brand new Public Law Outline and professionals getting to grips with the new model of doing things. Over the last eight years, care proceedings have just continued to climb, year on year, the only thing that differed was by how much.
But then over the last two years, the rate of increase dramatically shot up.
As the President observes in his View, we’re going to be pretty close to 15,000 sets of care proceedings this year, and are likely to pass that next year. He gloomily predicts that we are heading for 20,000 a year over the next few years (I’m not sure that I agree, and I’ll explain why later)
The critical thing, of course, is that this increase of between 200 and 300 % in the volume of care proceedings over the last ten years has not been matched by a 200-300% increase in the number of Judges or Court sitting days. Nor by the number of social workers, or Guardians, or care lawyers. And vitally important for the Crisis that even the President says is looming, is that there has ABSOLUTELY not been a 200-300% increase in the legal aid budget for care cases – in fact there’s not only not been increases in line with inflation, but actual cuts.
At the moment, each care case has a fixed fee in terms of solicitors (they can cost a bit more if the case takes twice as much work as the average) , so when care cases increase, the number of those fixed fees increase. When, as at the moment the increase in volume is about 23% on last year, which was in turn 20% on the year before, you can see that the portion of the Legal Aid budget that deals with fixed fees for solicitors, which has had NO INCREASE AT ALL is under huge pressure.
The other costs in terms of legal aid are – counsel’s fees, and the more cases that are in Court, the higher those will go – particularly as solicitors have more volume of cases to run in the office and are able to go to Court less, those costs will go up. And experts fees – there had been a considerable reduction in the use of experts since the 2014 law changes which meant that before the Court could agree an expert they had to be satisfied that it was NECESSARY rather than just helpful or useful. But, that was all working on the basis that social workers would be doing more and more of the assessments, and if their volume of work has gone up like that, that’s less possible.
My best case scenario is that the legal aid budget for care proceedings is around 40% overspent from 2 years ago (it takes time for all the payments to filter through, but we could be in for that experience again where the Legal Aid Agency write no cheques at all in February and March, because they’ve got no money – it happened about 6 years ago, I think. If that happens now, firms will go under). I think the overspend might be far worse than that, in reality.
So I agree entirely with the President when he says :-
Following implementation of the recommendations of the Family Justice Review, the average duration of care cases fell rapidly month by month – the graph, accordingly, showing a constant falling line. Over the last year or so the graph has ‘flat-lined’. That it has not, as yet, begun to climb must be a matter for congratulation to everyone involved in making the system work. To keep the line level as the caseload increased by 14% is an astonishing achievement. I hope I turn out to be wrong but I do not believe that this level of achievement can be maintained as caseloads continue to rise. The fact is that, on the ground, the system is – the people who make the system work are – at full stretch. We cannot, and I have for some time now been making clear that I will not, ask people to work harder. Everyone – everyone – is working as hard as they can.
We must, accordingly, assume that the line on the graph will start to go up – to move in the wrong direction. We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis.
That’s brave and honest language from the man in charge of the system, and he is to be commended for it. Every time I’ve looked at the CAFCASS care demand stats, which are published each month, I’ve thought ‘either these numbers take a sharp dive over the next few months, or we’re all f***ed.’ And far from taking a dive, they’ve just ramped up higher and higher.
There IS no more money, there is not going to BE any more money. So, either the Government and Legal Aid Agency work out a way of cutting VOLUMES, or COST PER CASE, or they just simply don’t pay nearly half the bills that come in, with no prospect of being able to pay them next year either.
As the President says:
There are, in principle, three possible causes for the increase:
- that the amount of child abuse/neglect is increasing;
- that local authorities are becoming more adept at identifying child abuse/neglect and taking action to deal with it;
- that local authorities are setting more demanding standards – in other words, lowering the threshold for intervention.
I do not believe that child abuse/neglect is rising by 14% let alone 20% a year. So this cannot be the sole explanation. It follows that changes in local authority behaviour must be playing a significant role.
I think that there are fairly clear correlations between poverty in our society and neglect, and between poverty and substance and alcohol abuse (that’s not for a SECOND to say that all abuse is perpetuated by poor people, or that poor people are child abusers – just that as the level of poverty increases in the country, you’ll see a corresponding increase in the levels of neglect and alcohol misuse and substance misuse). So I think there’s going to be an ongoing underlying increase until this country’s economic fortunes turn round.
Equally, I think that cuts to services that support and help families – which have happened and continue to happen, inevitably mean that some families without those services will fall into care proceedings.
My guess is that those two factors account for some of the underlying increase year on year – that 6-10% annual increase. But the massive spikes – I don’t think that they are that, and there’s not the clear “Baby P” fear factor that we all thought accounted for the increases since 2008 (incidentally, the timing of the big increase and continued increases rather than care proceedings being roughly stable each year corresponds with the 2008 financial crisis and austerity since that time, disporportionately affecting the poorest and most vulnerable in society. With the benefit of hindsight, it wasn’t so much a Baby P factor as a ‘sub-prime mortgage’ factor)
The spike, my thinking is, is largely a result of the set of decisions within care proceedings that meant that Local Authorities who had children in care under s20 with parents not objecting to that were getting hammered by Judges for not having gone to Court earlier and being made to pay damages and costs. Now, this is difficult, because I think that s20 drift (particularly with parents whose capacity to consent was compromised) was a genuine problem and a real issue and it needed to be tackled. So I welcome those cases (though I think the damages figures are rather plucked out of the air in comparison to personal injury damages quantum), but you simply can’t get away from this:
Judges told Local Authorities that if they held on to s20 cases and didn’t issue, they’d be told off, made to pay compensation, made to pay costs, and be in published judgments, so local and national press could report on them getting a judicial kicking.
Local Authorities issued way more proceedings.
Do I think s20 drift is an issue that needs addressing? Hell yes.
Do I think it is such an important issue that it is worth risking either – LAA not paying cheques for 3-4 months of the year and solicitors firms going out of business? OR the alternative which is clearly attractive to the Legal Aid Agency – remove representation of children by lawyers, save 33% of the budget in one simple move?
I’m afraid that I don’t.
So, quick hotfix
- HRA damages claims about s20 drift or delay should be issued in the civil courts, as a civil case with the pre-action protocols.
- And not done within care proceedings or within care proceeding legal aid certificates.
Does this make it harder to get those HRA claims? Absolutely. Does it mean that s20 drift won’t be tackled as rigorously by the Courts as it is at present? Absolutely. Will it reduce the number of proceedings being issued. Hell yes.
I’m also afraid that from what I have heard about the effectivness of Settlement Conferences in avoiding final hearings in the pilot authorities, these are INEVITABLY going to be rolled out, despite reservations that the Association of Lawyers for Children rightly have about them
The biggest resource cost in care proceedings is the final hearing – that takes up Court time, Judge time, counsel fees, expert attendance fees. So a scheme which in the pilots has changed the proportion of cases that settle before final hearing from about 30% to 90% is going to be massively attractive to the MOJ and the Legal Aid Agency. Particularly in this climate. I can’t see how they won’t be rolled out nationally if the pilot when it reports even says that the proportion of cases that settle went from 30% to 50%.
Here is another idea of mine which would save money at final hearings but without being as queasy as the Settlement Conferences scheme.
At an IRH, if the parents are presenting as a couple and there are no issues which REQUIRE them to be separately represented by counsel at the final hearing, there will be a rebuttable presumption that they would have one counsel. That will be a decision for the Judge to decide at IRH, having heard representations.Obviously if it is a case with allegations of domestic violence or coercive control, it won’t be appropriate for one counsel to represent the other, likewise if there is a disputed injury or sexual allegation where one party might have to implicate the other or decide on separation. But I have lost count of the number of final hearings I’ve done where the Legal Aid Agency and hence the taxpayer, is paying for counsel to represent the mother and counsel to represent the father, and you could not slip a cigarette paper between their case and their submissions. It adds to time, it adds to cost, and with a looming 40% budget overspend, it is a luxury we can’t afford.
To be honest, this is something which ought to be addressed at IRH’s anyway, but I’ve never heard parents' counsel asked the question at any IRH – what is the need for parents to be separately represented here?
[In those cases where there’s an answer to that, then of course they should be separately represented, but too often it is just done without any thought or consideration, other than mum has her own team and dad has his own team. It’s not going to save 40% of the budget, but it would be a start, and much better than robbing the child of a voice in the proceedings]
I think that the President places a lot of stock in shorter documents solving some of the problems of time and cost per case. In my experience, shorter documents give less space for setting out the facts and the arguments clearly, and result in greater disputes. To draw up a threshold which provides the factual allegations, the specific examples for which findings are sought AND contains the Re A analysis, is a constant battle to get into two pages, and LA’s are ALWAYS drawing them up with one hand tied behind their back. Something has to give, and if it is the choice between two lines where I can put in a significant allegation or dropping that allegation for a Re A analysis, I’ll drop the Re A every time. Sorry, but that’s how it is. I think it was right to stop thresholds being so sprawling, but when Re A came in, the limit should have been made to 3 pages – 5 in exceptional cases. (Try doing an FII threshold in 2 pages….)
Shorter social work statements – well yes, we’d all like to get rid of the waffle and duplication and jargon (not sure that the standard SWET model does absolutely anything in that regard) and a large chunk of the documents are now spent on the Re B-S analysis, so we can’t get rid of that. Shorter statements, in space restrictions might also lead to less balance – if you have to squeeze everything in, isn’t there a tendency to focus on the stuff that helps your case, rather than provide the balanced accounts of the positive things that the parents have done. To write about the truly awful session of contact on 4th February but not make room for some of the positive feedback about other sessions?
In my experience, the most common question I hear posed to social workers in the witness box is:
“But why isn’t this in your statement?”
So shorter statements might well be a mixed blessing. Less for people to read, but missing some of the facts, context, analysis and rigour that might lead to less need to call live evidence and to have final hearings.
I’m all for the President’s suggestion of research – let us perhaps start with a comparison of those authorities who are using SWET and whose Courts are hardline on page restrictions versus those who aren’t. Does it affect number of proceedings, number of hearings, number of contested final hearings, time taken to conclude cases…
Andrew Pack is a local authority childcare lawyer. This article first appeared in his Suesspicious Minds family law blog.
