Ministers to bring in six-month timetable for care cases "as soon as reasonably practicable"

February 6, 2012

The Government has accepted the key public law recommendation of the Family Justice Review and will introduce a time limit of six months for the completion of care and supervision cases “as soon as this is reasonably practicable”.

In a joint response published today, the Ministry of Justice and the Department for Education said: “Cases which can be, should be progressed much more quickly. Judges would retain the flexibility to extend a case beyond the time limit in exceptional cases where this is necessary in the interests of the child and the reasons have been clearly set out.

“This new legal requirement will help ensure that speedy case progression becomes the norm and that tackling unnecessary delay receives the sustained attention it deserves.”

But ministers have rejected the FJR’s proposal that extensions beyond the time limit should be agreed by a senior judge, arguing that this would encroach on judicial independence and might create further delay. Instead the reasons for the extension will be recorded and stated in court.

The Government added that it would work with the President of the Family Division to continue to drive up adherence to the Public Law Outline, which is seen as the key management tool for the judiciary to tackle delay.

The MoJ/DfE response said that in order to “create a system where cases are better managed, delays are minimised and children’s needs come first”, the government would:

Introduce into legislation new, clearer powers to ensure that the child’s welfare and their timetable, must be considered in determining how quickly cases progress. Guidance and training will be developed on what factors should be taken into account in establishing an appropriate timetable for each child. Clear processes will be developed for tracking cases through to completion;
Work with the President of the Family Division to ensure a “new, more robust” role for judges themselves in deciding and ensuring the timetable for the child is met. “We will support this, working with the judiciary, to ensure, wherever possible, that the same judge sees a case through from beginning to end and that judges hearing family cases are increasingly family law specialists”;
Legislate to give judges greater discretion over the duration of Interim Care Orders and their renewal, “removing the unnecessary constraints and additional administrative processes connected with the current removal arrangements”;
Accept the thrust of FJR proposals that local authorities should review the operation of their Independent Reviewing Officer, in particular that they are adhering to guidance regarding case loads, and that IROs should regularly report to the Director of Children’s Services/Director of Social Services and Lead Member for Children;
Transfer the sponsorship of Cafcass from the DfE to the MoJ;
Act to reduce the excessive use of expert reports and strengthen the quality and timeliness of those which are commissioned. “We will legislate to make clear that in family proceedings the courts should only give permission for expert evidence to be commissioned where it is necessary to resolve the case and the information is not already available through other sources";
Require the courts, in giving permission to commission expert evidence, to specifically consider the impacts the delay will bring. Local authorities will need to play their part by providing high quality, comprehensive initial assessments. Minimum standards for experts will be developed through the Family Justice Board;
Act to raise the standards of social care practice “which, in some areas, have driven the lack of trust in the evidence local authorities present and helped generate more delays”. Court preparation and presentation skills will become an integral part of initial and continuing social work training;
Support a programme of work to capture and disseminate best practice and to foster closer collaboration and joint learning between the courts and local authorities. “We will act to ensure that all local authorities can draw on evidence-based practice to support their work with families”;
Build the skills of all professionals in the system through a broad programme of workforce development;
Legislate to “strip out duplication and ensure the role of the court is properly focused”. This legislation will cover two areas: the care plan and adoption panels;
In relation to the care plan, legislate to make clear that “though courts will still need to consider the core elements of the plan, in the majority of cases the detail could and should be left to the local authority”;
In relation to adoption panels, under current arrangements local authorities can only apply for a placement order after a case has been considered by the adoption panel, the panel has made its recommendation and the local authority has made its decision. “Since the court must undertake a full assessment of the evidence, we will remove this requirement and prevent any duplication”;
In addition to taking forward the FJR’s recommendations in relation to adoption, implement a number of other measures. These include: overhauling the process and timeframe for recruiting prospective adopters; removing other barriers and delays to the decision-making process for the child, including promoting more use of concurrent placements and early family finding; examining adoption breakdowns and contact arrangements; and developing a performance framework.

However, the Government has rejected the FJR’s recommendation that charges to local authorities for public law applications should be scrapped.

In the response, the MoJ and the DfE said: “The Government’s decision….need not and should not have any impact on local authorities protecting vulnerable children.

“Where children might be at risk from harm, local authorities will investigate and put any cases before the courts as swiftly as possible. The Review did not find any evidence that court fees prevented local authorities from fulfilling their statutory duty.”

The response added that the approach to court fees reflected a long-standing policy that statutory fees should be set at a level that recovers the cost of the services provided, “and no more”. Court fees were necessary to ensure that the family courts were properly funded, it said.

“Each year the Government provides funding to cover local authorities’ costs in child protection cases, with councils given the flexibility to allocate this according to local needs,” the MoJ and the DfE said, adding that this provided greater transparency of the true cost of the services they provide.

The Government nevertheless said it would accept the FJR’s recommendation that charges to local authorities and Cafcass for police checks in public and private law cases should be removed.

Overall, the MoJ and the DfE said they had accepted the majority of the FJR’s recommendations in full.

Ministers said they would establish a new Family Justice Board by April 2012. Consisting of senior figures representing the key organisations that play a role within the system, the board has been tasked with driving improvements “with a clear focus on greater cross-agency coherence, tackling variations in local performance and making progress against the six-month time limit for care cases”.

The Family Justice Board will act as an interim board while the Government considers the need for any wider structural reform, such as the creation of a Family Justice Service as recommended by the FJR.

The Government also agreed with the FJR on the benefits of clarifying and simplifying the family courts, “and making their operation more transparent”, by establishing a single Family Court for England and Wales.

But ministers – after discussions with the judiciary – rejected the FJR’s call for a Vice President of the Family Division to be appointed and for Family Division Liaison Judges to be renamed Family Presiding Judges.

In the private law arena, the Government said:

The changes in education and the introduction of parenting agreements which the FJR recommended would help ensure better recognition of the joint role of parents within wider society;
A legislative statement will be made, emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. This would reflect the need to “clarify and restore public confidence that the courts recognise the joint nature of parenting”;
It would simplify the family justice system to help separating couples “reach lasting agreement speedily, if possible without going to court”. The government will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead. An extra £10m will be spent on legal aid for family mediation.

Justice Secretary Kenneth Clarke said: "The reform of family justice and child protection is a critical priority for Government. Our reforms are ambitious and system-wide and particularly tackle the crucial problem of delay.

“More use of mediation, more effective court processes and more efficient provision of advice will help to create a family justice system which can better resolve these difficult emotional problems in the best interests of children and families.”

Children’s Minister Tim Loughton meanwhile said it was “unacceptable” for vulnerable children to be waiting for an average of 55 weeks for a decision about their future.

“The introduction of a new six month time limit on care cases sends a clear signal to everyone involved in the process that we want to see radical improvement. Speeding up the court system, and getting earlier decisions about a child’s future, will help ensure that more children are found loving homes more quickly.”

David Norgrove, who chaired the Family Justice Review, said he was pleased that the Government had accepted the “overwhelming majority” of its recommendations.

He added: “The result should be to reduce the long delays that are so damaging to children and families and to help separating couples sort out their issues for themselves to the benefit of their children.”

Commenting on the Government’s response, the Lord Chief Justice, Lord Judge, said: "The judiciary will continue to play its part in modernising the system of family justice."

The government’s response can be downloaded here.

Philip Hoult