Family Justice Review urges ministers to legislate for six-month time limit in care cases

November 3, 2011

The government should legislate for a six-month time limit for the completion of all public law children cases – save in exceptional circumstances – as part of a drive to tackle “shocking delays” in the system, the Family Justice Review panel has recommended.

The panel acknowledged that a time limit would not of itself guarantee success but argued that it would give a strong focus to the programme of fundamental reform that is required. “It should in particular help to break what has been described as an accepted culture of delay,” it said.

In its final report the panel, which was set up in February 2010, also suggested that:

less reliance should be placed in public law cases on “unnecessary” expert witnesses and reports
the courts should be refocused on the core issue of determining whether the child should go into care. Existing court scrutiny of the local authority’s care plan goes beyond what is needed, it said. “Courts are not well equipped to scrutinise care plans and their involvement is not a guarantee of success”
work should be done to address the courts’ reluctance to rely on local authority assessments
charges to local authorities for public law applications and to local authorities and Cafcass for police checks in public and private law cases should be removed.

The report said the average time currently taken for an outcome in a care case was – at over a year – “far too long in the life of a child”. It pointed to the backlog of cases in the system, with an estimated 20,000 children waiting for their futures to be decided.

Overall the Family Justice Review panel made some 40 recommendations in relation to public law (these are reproduced at the bottom of this article).

Its report also proposed reforms designed to bring greater coherence to the family justice system as a whole and to enable people to make their own arrangements when they separate, if possible without the involvement of a court.

The panel concluded that the family justice system was “under huge strain”, with rising caseloads and incoherent organisation.

David Norgrove, the panel’s chairman, said: “Our package of recommendations to the government and the judiciary will make the current family justice system more effective. We need to eliminate the shocking delays in the system.

“This is why we are recommending legislation to ensure that child protection cases must not be allowed to take any more than six months, save in exceptional circumstances.”

Responding to the report, a government spokeswoman said it intended to introduce the six-month limit as part of a package of reforms aimed at speeding up the system. “We hope many cases should be completed much quicker than this,” she added.

From January 2012 the government will publish court-by-court performance so it “can see exactly where improvements need to be targeted”.

The Family Justice Review’s proposals for ensuring "a simpler system with an improved service" include:

The creation of a Family Justice Service – sponsored by the Ministry of Justice – to make sure agencies and professionals work together to make positive improvements in the system for children and families
More judges who are specialists in family law to hear cases “from start to finish to ensure consistency and confidence in the system”
A simplified court structure making it easier for people using the courts to know where to go. There should be a single family court, with a single point of entry, to replace the current three tiers of court. All levels of the family judiciary, including magistrates, should sit in the family court
More child focus and better training for professionals to make sure children’s views are heard.

In the field of private law it has proposed:

A single online and phone help service to make it simpler for people to decide the most appropriate way forward and increase clarity of understanding
Use of Parenting Agreements and a new ‘child arrangements order’ to bring together arrangements for children’s care after separation, focusing on the child rather than ‘contact’ and ‘residence’
Increased provision of mediation to prevent cases going to court unnecessarily.

The Family Justice Review panel warned that the lack of data and unit costs had made it impossible to consider the costs and benefits of its recommendations to the system as a whole. It admitted that there would have to be initial investment to support system reform, greater efficiency and less duplication. "This should not be substantial," it claimed, adding that savings should be invested to reduce delay.

The panel also recognised that the creation of the Family Justice Service would involve costs, but said these would depend on the model adopted by government and its functions. Other costs – such as better IT and investment in training – were needed with or without any structural changes.

In relation to the extensive public law recommendations, the report said the panel's proposals would "shorten and simplify many public law cases requiring less time from judges, court resource, expert witnesses, and saving the resource of Cafcass and local authorities".

"The resource released will be needed to handle the strains on capacity," it added.

The government spokeswoman said it was committed to transforming the family justice system. She described the panel’s recommendations as “a good start”, and said they would considered in detail.

The spokeswoman said: “It is vital we radically reform the family justice system to tackle delay and improve the service to children. In particular, we know the amount of time it takes for a child to be adopted is unacceptable.”

She added that ministers agreed with the panel's strong focus on mediation for separating couples and said they would be increasing funding for this by two thirds to £25m a year.”

Cllr David Simmonds, Chairman of the Local Government Association’s Children and Young People Board, said: "Children must not become the victims of the lengthy court process. Councils are dedicated to putting children first and those in care need to be saved from the years of uncertainty created by the current court system.

"The government has recently challenged local authorities to remove the barriers that delay decisions in the adoption and fostering process. It must now play its part by implementing these recommendations to stop children and families from spending an unacceptable length of time going through the court.”

Cllr Simmonds insisted that councils took their responsibilities towards children in their care extremely seriously.

“While we acknowledge that there is work to do to tackle the variation in performance across local authorities, we want to work with government to remove unnecessary obstacles and ensure children are in stable and loving homes wherever possible,” he said.

The Family Justice Panel was set up by the Ministry of Justice, the Department for Education (or the Department for Children, Schools and Families as it then was) and the Welsh Government.

Philip Hoult

A copy of the report can be viewed here.

THE FAMILY JUSTICE REVIEW’S RECOMMENDATIONS IN RELATION TO PUBLIC LAW

The role of the court

“These recommendations seek to refocus the court on the core issues in the care plan.”

Courts must continue to play a central role in public law in England and Wales
Courts should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority
When determining whether a care order is in a child’s best interests the court will not normally need to scrutinise the full detail of a local authority care plan for a child. Instead the court should consider only the core or essential components of a child’s plan.
The panel proposes that these core components are: planned return of the child to their family; a plan to place (or explore placing) a child with family or friends; alternative care arrangements; and contact with birth family to the extent of deciding whether that should be regular, limited or none.
The government should consult on whether section 34 of the Children Act 1989 should be amended to promote reasonable contact with siblings, and to allow siblings to apply for contact orders without leave of the court.

The relationship between courts and local authorities

“These recommendations are intended to improve the relationship between local authorities and courts so that the different components of the system operate better together.”

There should be a dialogue both nationally and locally between the judiciary and local authorities. The Family Justice Service should facilitate this. Designated Family Judges and the Director of Children’s Services/Director of Social Services should meet regularly to discuss issues
Local authorities and the judiciary need to debate the variability of local authority practice in relation to threshold decisions and when they trigger care applications. This again requires discussion at national and local level. The government should support these discussions through a continuing programme of analysis and research
The revised Working Together and relevant Welsh guidance should emphasise the importance of the child’s timescales and the appropriate use of proceedings in planning for children and in structured child protection activity.

Case management

“These recommendations seek to promote and improve robust judicial case management. They are intended to tackle delay by time limiting cases and reforming process.”

Different courts take different approaches to case management in public law. These need corralling, researching and promulgating by the judiciary to share best practice and ensure consistency
The government should legislate to provide a power to set a time limit on care proceedings. The limit should be specified in secondary legislation to provide flexibility. There should be transitional provisions
The time limit for the completion of care and supervision proceedings should be set at six months
To achieve the time limit would be the responsibility of the trial judge. Extensions to the six-month time limit will be allowed only by exception. A trial judge proposing to extend a case beyond six months would need to seek the agreement of the Designated Family Judge/Family Presiding Judge as appropriate
Judges must set firm timetables for cases. Timetabling and case management decisions must be child focused and made with explicit reference to the child’s needs and timescales. There is a strong case for this responsibility to be recognised explicitly in primary legislation
The Public Law Outline provides a solid basis for child focused case management. Inconsistency in its implementation across courts is not acceptable and so the panel encourages the senior judiciary to insist that all courts follow it
The Public Law Outline will need to be remodelled to accommodate the implementation of time limits in cases. The judiciary should consult widely with all stakeholders to inform this remodelling. New approaches should be tested as part of this process
The requirement to renew interim care orders after eight weeks and then every four weeks should be amended. Judges should be allowed discretion to grant interim orders for the time they see fit subject to a maximum of six months and not beyond the time limit for the case. The court’s power to renew should be tied to their power to extend proceedings beyond the time limit
The requirement that local authority adoption panels should consider the suitability for adoption of a child whose case is before the court should be removed.

Local authority practice

“These recommendations focus on improving the quality of local authority social services and their engagement in proceedings.”

The judiciary led by the President’s office and local authorities via their representative bodies should urgently consider what standards should be set for court documentation, and should circulate examples of best practice
The panel encourages use of the Letter Before Proceedings. It recommends that its operation be reviewed once full research is available about its impact
Local authorities should review the operation of their Independent Reviewing Officer service to ensure that it is effective. In particular they should ensure that they are adhering to guidance regarding caseloads
The Director of Children’s Services/Director of Social Services and Lead Member for Children should receive regular reports from the Independent Reviewing Officer on the work undertaken and its outcomes. Local Safeguarding Children Boards should consider such reports
There needs to be effective links between the courts and Independent Reviewing Officer and the working relationship between the guardian and the Independent Reviewing Officer needs to be stronger

Expert witnesses

"These recommendations intend to reduce the reliance on expert witnesses and improve their supply and quality."

Primary legislation should reinforce that in commissioning an expert’s report regard must be had to the impact of delay on the welfare of the child. It should also assert that expert testimony should be commissioned only where necessary to resolve the case. The Family Procedure Rules would need to be amended to reflect the primary legislation
The court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved. Independent social workers should be employed only exceptionally
Research should be commissioned to examine the value of residential assessments of parents
Judges should direct the process of agreeing and instructing expert witnesses as a fundamental part of their responsibility for case management. Judges should set out in the order giving permission for the commissioning of the expert witness the questions on which the expert witness should focus
The Family Justice Service should take responsibility for work with the Department for Health and others as necessary to improve the quality and supply of expert witness services. This will involve piloting new ideas, sharing best practice and reviewing quality
The Legal Services Commission should routinely collate data on experts per case, type of expert, time taken, cost and any other relevant factor. This should be gathered by court and area
Studies of the expert witness reports supplied by various professions should be commissioned by the Family Justice Service
Agreed quality standards for expert witnesses in the family courts should be developed by the Family Justice Service
A further pilot of multi-disciplinary expert witness teams should be taken forward, building on lessons from the original pilot
The Family Justice Service should review the mechanisms available to remunerate expert witnesses, and should in due course reconsider whether experts could be paid directly

Representation of children

“These recommendations are intended to promote the value and effective operation of the tandem model of children’s representation.”

The tandem model should be retained with resources carefully prioritised and allocated
The merit of using guardians pre-proceedings needs to be considered further
The merit of developing an in-house tandem model needs to be considered further. The effects on the availability of solicitors locally to represent parents should be a particular factor

Alternatives to conventional court proceedings

"These recommendations encourage the development of approaches and programmes that better support families while avoiding or reducing the need for distressing and costly court cases."

The benefits of Family Group Conferences should be more widely recognised and their use should be considered before proceedings. More research is needed on how they can best be used, their benefits and the cost
A pilot on the use of formal mediation approaches in public law proceedings should be established
The Family Drug and Alcohol Court in Inner London Family Proceedings Court shows considerable promise. There should be further limited roll out to continue to develop the evidence base
Proposals should be developed to pilot new approaches to supporting parents through and after proceedings.