Family President consults on reforms amid “unsustainable” volume of cases relating to children

The President of the Family Division, Sir Andrew McFarlane, has launched a consultation on reform in the family courts, in a bid to tackle what he said was “an unprecedented and, on current resources, unsustainable volume of cases relating to children”.

The consultation, which can be viewed here, follows the publication of interim reports from working groups led by Mr Justice Keehan (public law) and Mr Justice Cobb (private law) on practices and processes in those areas. It will run until 30 September 2019.

Sir Andrew noted that during 2016, the number of ‘public law’ applications for care orders or supervision orders made by social services departments across England and Wales rose by 25%; and that this higher volume had largely been maintained since then.

He added that during the same period of the past three years, the number of ‘private’ law applications made by parents with respect to their children had also been rising, “so that it is now at an all-time high”.

“Following the removal of most of these private law cases from the scope of Legal Aid, many parents now come before the court as litigants in person, without lawyers, with the consequence that such cases tend to last longer and require more judicial input,” the President said.

Sir Andrew said delay in decision making was likely to be contrary to a child’s best interests. There was also both a human and a legal requirement on the Family Court to consider and determine children cases in the course of a matter of weeks or months, with an upper statutory limit on public law care proceedings of 26 weeks.

“Prior to 2016 the system was just about achieving this demanding target, but the rise in the volume of work has inevitably led to delay as the same number of social workers, CAFCASS officers, lawyers, magistrates and judges and reducing numbers of court staff endeavour to cope with this rising tide of work,” the judge said.

“Although the number of judicial sitting days has been increased to a degree, the ability to deliver that increase can be compromised by a finite number of available court rooms, support staff, magistrates and judges.”

Both of the reports from Mr Justice Keehan and Mr Justice Cobb have made recommendations in relations to processes and procedure that will now be the subject of the consultation.

Sir Andrew said: “The scope of these two projects does not extend to reform or amendment of the substantive law; rather, it is aimed at improving the ability of the system, and those who work within it, to apply the existing law as it relates to children.”

The Keehan working party makes 57 core recommendations. In broad terms they are as follows:

Local authority decision-making

i. sharing good practice;

ii. a shift in culture to one of co-operation and respect that values and equally questions the contribution of all parties;

iii. a renewed focus on pre-proceedings work and managing risk;

iv. develop consideration factors to support decision-making prior to legal gateway meetings;

v. re-focussing the role of local authority legal advisers and the use of the legal gateway meeting;

vi. develop and share good practice in driving positive challenge with the IRO/ conference chair.

Pre-proceedings and the PLO

vii. a renewed focus on the central principles in the pre-proceedings phase of the PLO;

viii. drafting of local authority pledges or charters to families;

xi. working with children, including using the FJYPB’s Top Tips;

x. simplifying letters to parents;

xi. using the pre-proceedings phase of the PLO early (where required) and effectively;

xii. a standard agenda for meetings before action;

xiii. re-focussing the role of local authority legal advisers;

xiv. better use of assessments, services and support and fuller record keeping;

xv. tracking progress of cases pre-proceedings;

xvi. working with family and friends and the use of the FRG’s Initial Family and Friends Care Assessment: A good practice guide (2017);

xvii. greater pre-birth preparation for newborn babies;

xviii. effecting a change in culture, with training in support.

The application

xix. revision of the Form C110A;

xx. greater emphasis on pleading “the grounds for the application” in the Form C110A;

xxi. revision of the Form C110A for urgent cases/use of an“information form” for urgent cases pending roll out of the online form;

xxii. early notification of Cafcass;

xxiii. good practice guidance for courts listing urgent applications and CMHs;

xxiv. working with health services in relation to newborn babies;

xxv. including the child’s birth certificate in the bundle;

xxvi. focussed social work evidence / the SWET for urgent applications;

xxvii. revision of the SWET generally;

xxviii. a revised template for standard directions on issue;

xxix. introduction of checklists for advocates’ meetings and CMHs for practitioners and the court;

xxx. circulation of case summary templates;

xxxi. early and active case management;

xxxii. DFJ focus on wellbeing;

Case management

xxxiii. use of short-form orders;

xxxiv. advocates’ meetings: using an agenda and providing a summary;

xxxv. use of new template position statements and case summaries;

xxxvi. renewed emphasis on judicial continuity;

xxxvii. renewed emphasis on effective IRHs;

xxxviii. the misuse of care orders;

xxxix. case management of cases in relation to newborn babies and infants;

xl. experts: a reduction in their use and a renewed focus on “necessity”;

xli. experts: a shift in culture and a renewed focus on social workers and CGs;

xlii. judicial extensions of the 26-week time limit;

xliii. a shift in focus on bundles: identifying what is necessary;

xliv. fact-finding hearings: only focus on what is necessary to be determined;

xlv. additional hearings: only where necessary;

xlvi. the promotion nationally of consistency of outcomes;

Special guardianship

xlvii. more robust and more comprehensive special guardianship assessments and special guardianship support plans, including a renewed emphasis on the child-special guardian relationship and special guardians caring for children on an interim basis pre-final decision;

xlviii. better training for special guardians;

xlix. reduction in the use of supervision orders with special guardianship orders;

l. renewed emphasis on parental contact;

S 20 / s 76 accommodation

li. circulation and use of the working group’s guides on (1) s 20 / s 76, (2) good practice, (3) a simplified explanatory note for older children and (4) a template s 20 / s 76 agreement;

lii. no time limits on s 20 / s 76 – but agreement at the start of the offer of accommodation on how long it will last;

liii. focus on independent legal advice for those with parental responsibility “signing up to” s 20 / s 76;

liv. local authority implementation of the working group’s guides and review of their functioning;

lv. on-going training and education on the proper use of s 20 / s 76;

lvi. a process of feedback and review on the proper use of s 20 / s 76;

lvii. further consideration of and guidance on s 20 / s 76 and significant restrictions on a child’s liberty.

In addition, the working party makes 16 proposals for longer-term change. These recommendations will require (1) legislative changes to be implemented and/or (2) the approval of additional public spending by the Government. Those are:

Local authority decision-making

i. consideration of pre-birth support for families;

Pre-proceedings and the PLO

ii. reconsidering the role of Cafcass pre-proceedings;

iii. legal aid funding for parents during pre-proceedings;

The application

iv. research into the regional variation in the proportion of urgent applications;

v. research into the frequency and use of police protection and EPOs;

vi. reconsidering planning for newborn babies, including the role of Cafcass pre-proceedings;

vii. the urgent development of a new IT system;

viii. general improvement in the range and quality of data collection and analysis by HMCTS and the MoJ;

ix. a review of the funding of the family justice system;

Case management

x. a review of recruitment and resourcing of the family justice system;

Special guardianship

xi. on-going review of the statutory framework;

xii. further analysis and enquiry into (1) review of the fostering regulations, (2) the possibility of interim special guardianship orders, (3) further duties on local authorities to identify potential carers, (4) the need for greater support for special guardians;

xiii. a review of public funding for proposed special guardians;

xiv. effective pre-proceedings work and the use of the FRG’s Initial Family and Friends Care Assessment:A good practice guide (2017);

S 20 / s 76 accommodation

xv. a review of public funding for those with parental responsibility “signing up to” s 20 / s 76accommodation;

xvi. investment in the use by local authorities of a multi-disciplinary approach.

Finally, the Keehan working party recommends that the best practice guidance in appendices C to H is issued by the President of the Family Division. "This guidance is made on the basis that every case turns and must be decided on its own particular facts."