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Public Law Outline to be relaunched in January 2023 with renewed focus on meeting 26-week deadline, says senior family judge

The President of the Family Division, Sir Andrew McFarlane, has said there is a need for a “radical resetting of the culture within the Family Court” so that the system reconnects with the strictures of the Public Law Outline (PLO).

The senior judge’s latest ‘‘A View from The President’s Chambers November 2022’ outlines the need for all involved in public law children cases to “reconnect with the core principles of the PLO as set out in Family Procedure Rules 2010, PD12A”, to ensure that the statutory requirement of completing each public law case within 26 weeks is met once again.

The President said his aim was for the necessary change in working practices to ‘go live’ in all local authorities and courts throughout England and Wales on 16 January 2023.

The View From the President’s Chambers report outlined that 10 years ago, when the Norgrove ‘Family Justice Review’ was undertaken, the average time taken for care proceedings before a judge was 61 weeks.

The Norgrove Review concluded that “delay has become habitual” and recommended that there should be a statutory time limit of 26 weeks for the completion of care proceedings.

That recommendation was accepted and, in April 2014, s 14 of the Children and Families Act 2014 [CFA 2014] came into force, thereby introducing s 32(1)(a) into the Children Act 1989 [CA 1989] requiring the court to draw up a timetable with a view to disposing of an application without delay and, in any event, within 26 weeks.

The vehicle by which it was to be achieved was the PLO, a template formula for the case management of proceedings.

By 2016 the national average time taken for care cases got down to 27 weeks, with 62% of the 24,150 concluded cases finishing within 26 weeks.

The President said: “Two separate developments are responsible for the system’s failure to hold on to the successes of 2015/6. The first was an unexpected and sustained 25% rise in the volume of s 31 applications, and the second was, of course, Covid 19. It is not necessary to spell out here the impact of these two major challenges.

“The result of their combined assault on our ability to undertake public law work in the Family Court has been a substantial increase in the backlog of unfinished cases with a consequent rise in the average length of a care case to 44.4 weeks in 2021, with only 23% of the 22,600 concluded cases doing so within 26 weeks.”

The judge noted that despite the sustained efforts of all involved, and despite continuing to deploy 25% more judicial resources than was the case pre-Covid, the backlog and delays have “proved to be very stubborn.”

Sir Andrew outlined his fear of a ‘normalisation of delay’, as it had been around six or seven years since courts have been meeting the 26-week deadline, so an expectation of doing so was lacking.

The reasons outlined by the President for the need for everyone in the system to “go back to operating the PLO in full and without exception” were:

  • The experience of those court centres which had already followed this course was very positive. “By constricting the procedural scope of each case to the PLO structure, it is possible for the limited resources of local authorities, CAFCASS/Cymru, the legal profession and the courts to be deployed more effectively. Cases are completed much closer to the 26 week mark and the backlog reduces. In these courts the local authorities and CAFCASS have welcomed the court’s initiative”;
  • Taking no action involves accepting that things will remain as they are. “Indeed, for the reasons that I have given, the normalisation of delay creates something of a downward spiral in which the situation simply gets worse rather than better”;
  • Whilst shifting gear and working to a tighter procedural template will initially require effort and cause difficulties, and these changes may not be readily achievable in all cases, “if the result is that in most courts and for most children the outcome is positive, and that, thereby, frees up resources to address new cases (both public and private law) in a more timely way, then that is a ‘win-win’ outcome. It is hard to see a reason why one would not try to achieve such a result”;
  • An intensive study (‘deep-dive’) by the Ministry of Justice into the working of six court centres over the summer had confirmed the need for a radical recalibration of the approach to case management;
  • After a period in which the HMCTS Reform programme had seen the progressive and busy rolling out of new digital products, a process which had inevitably distracted judges, court staff and others from substantive work on cases, it seemed that there might now be a period of consolidation before further roll-outs take place. “This, together with the reduced volume of applications, presents a window in which to concentrate on other matters”.

Sir Andrew McFarlane went on to “spell out the basics” of what was required to reconnect with the PLO:

  • The  PLO Pre-proceedings process, with the engagement of parents and a thorough assessment exercise, following the DfE Guidance and the PLWG recommendations, is essential;
  • Only those very rare cases that are truly urgent should be the subject of an ‘urgent’ first hearing. “Too often an ‘urgent’ hearing is sought as a matter of course. Urgently fixed hearings are seldom fully effective and a further hearing or hearings will normally be required”;
  • The first hearing should be the Case Management Hearing [‘CMH’], held ‘not before Day 12 and no later than Day 18’; an advocates meeting is to be held no later than 2 days before the CMH [see PLO Stage 2];
  • Parents to be expressly required to identify any family members for assessment at, or within a week of, the CMH;
  • No other hearing should normally be listed after the CMH until the Issues Resolution Hearing [‘IRH’];
  • Since 2016/7 there has been a 33% rise in the number of experts instructed. “Experts should only be instructed where to do so is ‘necessary to assist the court to resolve the proceedings justly’, rather than where it is merely desirable or helpful [C+FA 2014, s 13(6)]”.
  • The third hearing in the case, if necessary, will be the Final Hearing;
  • At the IRH or Final Hearing the court is only required to evaluate and decide upon the following issues: Are the s 31 threshold criteria satisfied? If so, what are the ‘permanence provisions’ of the care plan [CA 1989, s 3 1(3A)+(3B)], and; What are the contact arrangements [CA 1989, s 34(11)]? By affording paramount consideration to the welfare of the child, what final order(s), if any, should be made. [Sir Andrew's emphasis]
  • The court is not required to consider any aspect of the care plan other than the permanence provisions;
  • Robust case management by the court is required at all stages. This will include, where necessary, regular ‘compliance’ hearings to deal with any failure by a party to meet dates. All parties will be expected to monitor compliance with the court timetable and, if needed, report any failures to the court.

Sir Andrew added that there was a need to make cases ‘smaller’ by reducing the number of hearings per case and by making ‘every hearing count’.

The President noted that in light of the 16 January 2023 PLO Relaunch, he expects that discussions will now commence within each of the 42 DFJ areas with local authorities, CAFCASS/Cymru and all court users to agree how new care cases issued after 16 January will be managed.

He added: “More specifically, I would urge DFJ’s and local authorities to agree a clear timeline that is to apply to any ‘viability’ or full assessments of connected persons on the basis that that timeline is then adhered to.”

The Family President said the aim must be to effect real change in the management of proceedings. “What is required is compliance with a statutory obligation that has been imposed for the benefit of children. In that context excuses based on lack of resources and staffing must not prevent the changes that must now occur.”

He added: “I do not pretend that what is proposed will be without difficulties, but doing nothing is not an option; currently the system is spiralling in the wrong direction.”

Lottie Winson
A&M Bacon