Reducing the delay in Children Act proceedings: 26 weeks vs NHS waiting lists

Recent efforts have been made to reduce delay in public law Children Act proceedings. However, parents and families are faced with increasingly stretched public resources, including those available on the NHS. In many cases, the therapy with which the family are advised to engage is simply not available within the Court timetable. Francesca Massarella asks how a fair result can be achieved for a family when the help needed is simply out of reach.

The ‘No Delay’ Principle

In November 2022, the President of the Family Division issued a ‘relaunch’ of the Public Law Outline [‘PLO’]. This was intended to refocus the minds of all involved in public law children cases and encourage professionals to re-engage with the core principles of the PLO. The most important principle highlighted was the statutory time limit of 26 weeks for the completion of care proceedings, which was brought into force in 2014 via s.14 Children and Families Act 2014 and s.32(1)(a) Children Act 1989.

Following the reforms, by 2016, the average time for care proceedings was reduced to 27 weeks, having previously been an average of 61 weeks in 2013. However, since this time, the 26-week time limit has been achieved on a much less frequent basis, due to an increase in issuing of care proceedings and the COVID-19 pandemic. The concern of McFarlane J was that delay had simply become normalised due to all professionals involved in care proceedings, including the courts, being severely overstretched.

Included in the re-launch of the PLO, was a clear view that the 26-week time limit is to be adhered to unless necessary, in which case a judgment should be given to explain why extension is needed in the particular circumstances of that case.

However, the case law is also clear that speed should not be a reason to conclude proceedings in an unjust way. In the well-known case of Re NL (A child) [2014] EWHC 270 (Fam), it was made plain that ‘justice must never be sacrificed on the altar of speed.’

It is also important that Local Authorities ensure they are doing their upmost to devise a plan in which children can remain in their parent(s) care and do so within the confines of the 26-week time limit, but also bearing in mind their obligation not to rush matters inappropriately. In cases where Placement Orders are sought, this principle is even more important. The case of Re B-S (Children) [2013] EWCA 1146 reminded us that Article 8 of the European Convention on Human Rights imposes a positive obligation upon states to keep families together:

‘To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:

“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”’ (paragraph 18)

NHS waiting lists for mental health treatment

It follows that before the Court can sanction a plan for adoption, it should be satisfied that everything possible to help the family has been properly considered. In many cases, the parents involved have complex needs themselves and unresolved trauma.

According to the mental health charity, ‘Mind’, 1 in 4 people in England will experience some sort of mental health problem each year and 1 in 6 will experience a common mental health problem such as anxiety or depression, in any given week.

The mental health charity, ‘stem4’ published research in 2022 to show how the pandemic had impacted the mental health of their sample of parents. They surveyed 1,028 parents and carers with at least one child up to the age of 18 living in their home and found the following:

• 86% of parents felt overwhelmed or unable to cope as a result of the COVID-19 pandemic.
• 39% were experiencing mental health difficulties.
• 26% were able to access the treatment they needed.

Putting the pandemic aside, it is important to remember that many parents who are involved in care proceedings have experienced trauma themselves. This can be because of their own poor parenting experiences and a neglectful or abuse childhood or because of adult experiences with domestic abuse or substance misuse, for example. These experiences can often lead to poor mental health. The process of care proceedings itself also often has an impact on parents’ mental health, as it is an incredibly stressful time, particularly if they are suffering with the loss of children having been removed from their care, even if only on an interim basis.

Some parents involved in care proceedings may be subject to psychological or psychiatric assessment, which can identify a diagnosable mental health condition. Sometimes these are conditions which have previously been diagnosed and the expert instructed in proceedings confirms the same. Other times there is a new diagnosis for a parent to navigate. In either scenario, experts are almost always able to recommend therapeutic treatment or medication for parents to access to stabilise, control or ameliorate a mental health condition to enable that parent to safely parent their child(ren). Of course, this is always dependent upon that parent’s willingness to engage in such interventions and often other issues, such as domestic violence and substance misuse, need to be addressed independently or concurrently. The recommended timescale for completion of therapeutic work varies from case to case and the recommendation in respect of whether that parent could care for a child whilst that therapeutic work is ongoing is again a changeable factor.

However, the first question that often comes from a parent following a recommendation of therapeutic intervention is – how do I access this? The response is often to contact their GP, who in turn can refer them to the appropriate department or specialist.

The second question is – how long before I can begin my therapy? Some therapeutic interventions, such as Cognitive Behavioural Therapy, are more widely available. The waiting lists for this tend to be shorter because it is more easily accessible. Other types of therapy, such as Dialectical Behaviour Therapy, Cognitive Analytical Therapy or Eye Movement Desensitisation and Reprocessing Therapy can be much more difficult to access. NHS waiting lists can be extremely long, sometimes in excess of 1 year. The NHS website currently states that their commitment is to ensure that a patient is seen by a mental health provider within 18 weeks of a request for the same being made. The alternative is turning to private therapists, who often charge thousands for a full course of specialist therapeutic work. This is much quicker, but there are very few parents subject to care proceedings in the financial position to choose this option.

How the two issues intersect

The problem is abundantly clear. Care proceedings are supposed to be no longer than 26 weeks. The NHS are only able to commit to ensuring a patient is seen by a mental health provider within 18 weeks. Even if that timescale is met, that is before any therapeutic intervention has even begun and a significant amount of time before the impact of such intervention will be able to be visible and considered embedded change. Considering the time it takes for an expert to be instructed and to then complete a report in care proceedings, there is often no conceivable way that a parent who requires therapeutic intervention prior to safely caring for their child(ren) can access and complete the requisite therapy within the life of care proceedings, without extension.

This creates an inherent unfairness to parents in care proceedings, but also to children. To take an example, a child subject to a Placement Order is going to be placed for adoption. This may well be because they have a parent, or parents, who are willing to care for them, desperately wish to do so, but cannot access the requisite therapy within a reasonable timescale. This is not the parents’, nor is it the child’s, fault. There is often no specific person or body to blame.

The possible solutions

Extend the 26-week time limit

This is, in part, already an available solution to the problem. However, extensions to proceedings cannot be made indefinitely and this is exactly the issue McFarlane J is seeking to tackle with a return to the PLO. Whilst the court can extend proceedings to allow for parents to access the relevant therapy, with such long waiting lists and so much uncertainty, it cannot be right for the court to be expected to continue providing extensions with no clear end date.

Equally, it cannot be right for children to wait endlessly for a final decision about their future whilst their parent(s) try to access therapeutic work. Children need permanency as soon as possible and to work on any other premise would be to work against the overriding objective that their welfare interests are paramount.

Parent-led solution

It may be said that a parent should have accessed therapeutic help prior to care proceedings being issued. This might be applicable to some parents, but certainly is not a universal conclusion. Many parents may not be aware that they are behaving or feeling a certain way because they are suffering from a mental health condition or disorder. When considering how vulnerable many parents party to care proceedings can be, it may well be opined that it would be unfair to expect such individuals to have the confidence and ability to approach a medical professional for help in these circumstances.

Local authority-led solution

There might also be a suggestion that the remedy is for the Local Authority to simply pay for the private therapy. This would be ideal, but there are several difficulties with this suggestion. Firstly, the Local Authority must be willing to approach its internal funding panel for approval of this. They may not do so, and the court has no power to force the Local Authority to consider this. Secondly, if they reach the panel, the Local Authority must approve the allocation of such funding. Again, they may not do so, and the court has no power to force the Local Authority’s hand or alter this position. This was confirmed to be the position in Kent County Council v G & others [2005] UKHL 68 [2005] UKHL 68.

Whilst this might be a less than attractive position, it must be remembered that Local Authorities each have a duty to a significant number of children in their area and funding private therapy for each and every family who requires it is very unlikely to be financially possible and certainly not sustainable.

An alternative solution may be that Local Authorities are encouraged to instruct experts more regularly during the PLO process. This might well alleviate some of the delay caused by waiting for expert opinion during care proceedings but will not always be an available option. For example, when proceedings are issued on an urgent basis, either part-way through the PLO process or prior to the PLO process having opportunity to commence, prior instruction of an expert will not be practically possible.

Public services-led solution

The pragmatic solution would therefore seem to be that the public services involved in this issue, namely the NHS, the Local Authorities and the Family Courts, need to have a focussed discussion about how there can be a realistic and workable solution. This begins with good communication between those services to formulate a plan. It is not fair for families to continue to struggle with different arms of the state who all to often work within their own silos, with parents left to navigate the demands of social care against a backdrop of an under-resourced health system. The difficulty cries out for some joined up thinking, to enable those families who are most in need of assistance to be prioritised for therapeutic work. Just as looked after children receive priority for school places, I suggest that consideration should be given to a system which ensures timely access for parents to the services which may enable their child to remain within the family.

Conclusion

In the absence of progress on this issue, there will continue to be families who cannot remain together, who would otherwise have been able to if they had access to vital therapeutic treatment. This cannot be right or indeed fair, and calls into question whether the current system is meeting the obligation under Article 8 to keep families together.

Francesca Massarella is a Family and Public Law Barrister at Spire Barristers.