Rise in care cases has made workload of judiciary and court staff “untenable”: senior judge

June 14, 2018

The President-Designate of the Family Division, Lord Justice McFarlane, has suggested that his predecessor, Sir James Munby, was “fully justified” in describing the problems caused by the significant rise in care applications as a crisis.

In a speech at the launch of the Care Crisis Review, whose findings are set out below, Lord Justice McFarlane said: “Sir James was plainly right to blow the whistle when he did. The CAFCASS figures for last month, May 2018, record the second highest monthly figure for care applications received. I, too, am clear that this is a crisis and I am extremely concerned to see that it is by no means abating.”

The President-Designate added that, as the Care Crisis Review had demonstrated, the rise in the number of applications might be attributed to “a broad range of factors, some wholly disassociated from each other, which may impact upon the decision to issue a care application in a complicated, and at present little understood, manner”.

He said that it seemed to be the case in relation to each of these factors that, rather than the relevant families’ circumstances being addressed in another way, the default position had been to bring the matter to court by issuing a Section 31 Application.

Lord Justice McFarlane said that whatever the cause of this rise in numbers might be, “its effect, certainly from the perspective of the judges and the court staff, is that the workload, which prior to the rise was almost unsustainable, is now wholly untenable”.

He added: “On the positive side it is possible to say ‘thank heaven for the PLO, the 26 weeks and the reform package that Sir James Munby so effectively introduced 5 years ago’.

“The result was that, when the rise in numbers began to kick in, the judges and the courts were ‘match-fit’ to process and determine the applications in a timely manner. Had the system still been pottering along with an average case time of 60 weeks, it would have fallen over long ago. That, happily, has not yet occurred. Additional judicial ‘hours’ have been allocated to ‘Family’ and that is obviously welcome. However, despite the equally welcome addition of new recruits in the form of specialist part-time judges, finding the right judges to take up these extra judicial hours is not always easy.”

The judge’s comments came on publication of a report by the Care Crisis Review, which was funded by the Nuffield Foundation and facilitated by the Family Rights Group.

It found:

There was a sense of crisis felt by many young people, families and those working within the system.
Professionals were frustrated at working in a sector that was overstretched and overwhelmed and in which, too often, children and families did not get the direct help they needed early enough to prevent difficulties escalating.
There was a palpable sense of unease about how lack of resources, poverty and deprivation were making it harder for families and the system to cope.
Contributors expressed a strong sense of concern that a culture of blame, shame and fear had permeated the system, affecting those working in it as well as the children and families reliant upon it. It was suggested that this had led to an environment that was increasingly mistrusting and risk averse and prompted individuals to seek refuge in procedural responses.

However, the review also found that the child welfare legislative framework was “basically sound” and there were some local authorities that were bucking the national trend.

The report said that the system worked well sometimes: “children and families described individual practitioners who had transformed their lives and professionals described innovations, approaches and leaders who enable them to practice in a way that is respectful, humane and rewarding”.

The review also found common agreement about the way forward, with a consensus that relationship building had been and was at the heart of good practice.

The report set out 20 ‘Options for Change’, including:

Immediate steps that could be taken to move away from an undue focus on processes and performance indicators, to one where practitioners are able to stay focused on securing the right outcomes for each child.
Approaches, including family group conferences, in which families are supported to make safe plans for their child.
Suggestions of ways in which statutory guidance, such as Working Together to Safeguard Children, can be changed in order to promote relationship-based practice.
Opportunities for revitalising local and national family justice forums and other mechanisms, so that all can become places where challenges within the system are discussed and solutions developed.
Proposals for the Department for Work and Pensions and the Department for Education, in consultation with the devolved administrations, to examine the impact of benefit rules and policies, and the projected effect of planned benefit reforms, on the numbers of children entering or remaining in care.
A call for the Ministry of Justice to undertake an impact assessment of the present lack of accessible, early, free, independent advice and information for parents and wider family members on the number of children subject to care proceedings or entering or remaining in the care system, and the net cost to the public purse.
That the National Family Justice Board revises the approach to measuring timescales, including the 26 week timescale for care proceedings.
That there are improvements in exploring and assessing potential carers from within the family, when a child cannot live at home, and better support is provided to such carers and children so they do not face severe financial hardship.
That Ofsted and Social Care Wales in their inspections and research should take into account the duties on local authorities to support families and to promote children’s upbringing within their family.

The review also supported the Association of Directors of Children’s Services’ and the LGA’s call for Government to make up the £2bn shortfall in children’s social care service, saying that “money and resources matter for families and for services.”

It also highlighted the need for an additional ring fenced fund which could act as a catalyst for local authorities and their partner agencies to achieve changes needed in their local context to address the crisis.

Nigel Richardson, Chair of the review, said: “Dealing with the crisis is complex – inevitably so, because children and families live increasingly complex lives. But making the difference cannot be just about constant re-structures, or ever changing systems – the fundamental basis of our child welfare approach is encouragingly sound.

“The way forward has to be about working with complexity to offer hope. Offering an inclusive approach to family decision making so that families are helped to better understand the concerns about a child’s welfare and then helped to coordinate and propose a safe response to those concerns from within their own, usually extensive, family and friends network.

“It’s about moving away from an over reliance on the language of assessment and intervention and more towards understanding and helping. It’s about being less adversarial, risk averse and harsh and much more collaborative and kind.”