Child Protection Lawyers say 26-week target will be difficult to achieve

March 17, 2023

Over half (60%) of Local Authority Lawyers working in Child Protection have said that that the Family President’s 26-week target for cases to conclude will either be “quite” or “very” difficult to achieve, according to a new survey conducted by Local Government Lawyer.

The President of the Family Division, Sir Andrew McFarlane, has said there is an expectation for all new cases to be approached by judges by “rigorously applying the PLO” and that cases should conclude within 26 weeks.

At the PLO Launch event in January, event attendees were told that ‘delay has become normalised’ and that doing nothing is 'simply not an option'.

To overcome the delays in the system, Sir Andrew McFarlane and Mr Justice Keehan outlined a 20-point plan for family practitioners to follow in all cases from 16th January:

The Public Law Working Group’s recommendations should be followed in all cases
Assessments carried out ‘pre-proceedings’ are to stand as evidence in care proceedings and are not to be repeated
Timelines in the ‘public law outline’ should be adhered to, so the case management hearing (CMH) should be listed before day 18
Urgent applications prior to the CMH should only be listed in ‘genuinely urgent’ cases. It will be for the Court to determine if the matter is urgent
Any urgent hearing should not delay the case management hearing
The Gatekeeping order must be complied with, including for example, the parents’ responses to threshold to be filed and served so that their case is understood in advance of the CMH
Updating assessments need to be focussed
Part 25 applications should be filed and served before the case management hearing and there needs to be ‘stringent application of the necessity test’
Every hearing must be effective and be the subject of robust case management
In all cases at a CMH the case must be timetabled to an issues resolution hearing (IRH) – (only in exceptional cases should a final hearing be listed at CMH or prior to the IRH)
Split hearings cause delay. Should be reserved for single issue cases
Only list a further case management hearing (FCMH) if necessary
Non-compliance must be notified by any party
Urgent non-compliance will be listed
Parents and carers must be given a clear date by which they must identify any potential alternate carers and they must be informed that any alternate carers put forward after that date are most unlikely to be assessed
Robust case management at issues resolution hearings - rarely should the court accept that the case is said to be contested. Waiting for a contested final hearing (FH) is not welfare neutral for the child
Narrow disputed issues should be dealt with on submissions at issues resolution hearings
Expert witness attendance must be justified
Cases should conclude within 26 weeks. The principal aims are to have no more than 2 or 3 hearings per care proceedings
District Judges should agree assessment timetables

When asked how realistic the 20 bullet point measures outlined at the PLO launch event would be to achieve in practice, for the majority of points, over 70% of survey respondents said they would either be ‘easily achievable’ or ‘mostly achievable’.

However, those elements of the plans that raised the most concerns were:

“Robust case management of the IRH to avoid stress & delay for children & parents. Rarely should the court simply accept that the case is said to be contested”. (57% said this would be ‘quite’ or ‘very’ difficult to achieve)
Assessments carried out ‘pre proceedings’ are to stand as evidence in care proceedings and are not to be repeated (37% said this would be ‘quite’ or ‘very’ difficult to achieve.)
'Parents and carers must be given a clear date by which they must identify any potential carers’ (37% said this would be ‘quite’ or ‘very’ difficult to achieve)
Part 25 applications should be listed before the case management hearing and there needs to be ‘stringent application of the necessity test’ (31% said this would be ‘quite’ or ‘very’ difficult to achieve)
‘Designated family judges should seek to agree timelines for the assessment of parents in the proceedings’ (31% said this would be ‘quite’ or ‘very’ difficult to achieve)

Some local authority lawyers shared concerns over the measures adding pressure on an already over-stretched workforce. One survey respondent commented: “I agree with the aims of the PLO but there is no recognition for the reality of the situation on the ground. Implementing this now, with all of the other changes also being forced through is just about the final nail in the coffin and indicative of the lack of respect the judiciary have for those actually doing child protection.”

Another said: “These practice directions will impact an already overburdened, chronically under-funded sector that has a significant recruitment and retention issues not only within the Social Work sector but within Local Government Lawyers. Morale is incredibly poor and this is only going to result in a greater mass exodus from a sector which is already struggling.”

Somia Siddiq, a Children Panel solicitor and Co-Chair of the Association of Lawyers for Children (ALC) said: “The approaches set out at the PLO launch event are by no means alien to practitioners and those working in the family justice system. The starting point has always been that delay is detrimental to the welfare of the child and as children lawyers we have always done our best to avoid that. The pandemic in particular caused a raft of unavoidable delays to many cases.

“A ‘radical reset’ requires a collaborative approach between all parties. If it can be achieved, it is likely to benefit the families that we represent. However, a one size fits all approach is not always appropriate when dealing with people’s lives. We will strive to ensure that those whose interests we represent continue to be placed at the forefront of decision making, with the child at the centre”.

Jack Cordery, Director of Operations at Cafcass said: “From our data there are approximately 5,100 children in public law proceedings waiting longer than 52 weeks for a decision (of those close to 850 are waiting more than 100 weeks). We know from children themselves how the uncertainty that is created and prolonged by delay can impact negatively on their emotional wellbeing and how, for some of them, delay can limit their opportunities to achieve a sense of stability and permanence within their timescales.

“While not every set of proceedings can be concluded within 26 weeks, it is necessary to start with that intention. There are wide variations in the duration of proceedings around the country which must be addressed by us all. There are some areas, for instance, where the average duration in public law proceedings is already close to 26 weeks and others where it is much longer. As a system, we were closer to 26 weeks prior to the pandemic. So, we know it is achievable.”

The aim of the ‘Public Law Outline in Practice’ survey, in which 41 Local Authority Child Protection Lawyers took part, was to uncover where delays are occurring in proceedings, to analyse whether the 20-point plan instructed by the President can address them, or if the issues are more deeply rooted within the system.

To see the full results and analysis of the survey, please click here: https://www.localgovernmentlawyer.co.uk/child-protection/309-children-protection-features/53308-time-for-change

Lottie Winson