APPG Inquiry on Child Protection

Law Society Submission January 2013

The Law Society written submission to APPG inquiry on Child Protection The Law Society is the representative body for more than 140,000 solicitors in England and Wales. The Society negotiates on behalf of the profession, and lobbies regulators, government and others. This response has been prepared by the Law Societys Family Law Committee and Children Law Sub Committee. The Committees are made up of specialist family lawyers who practise in both public and private law. Judicial Scrutiny of care plans and scope of court scrutiny We support the proposal in the Draft Children and Families Bill that the court should exercise more focused scrutiny of care plans. The key issues for the court to consider were identified in the Family Justice Review as: planned return of the child to their family; a plan to place (or explore placing) a child with family or friends; alternative care arrangements; and contact with birth family to the extent of deciding whether it should be regular, limited or none

The draft legislation omits point four, contact with birth family. We support the Justice Committees recent recommendation that the draft clause on care plans should be revised to make express reference to contact with the birth family. Legislation should be clear that judges will retain discretion to look beyond the issues identified. Instead of stating that a court deciding whether to make a care order is not required to consider the remainder of the section 31A plan1 it would be better to say a court deciding whether to make a care order may consider the remainder of the section 31A plan. If the court role of scrutinising care plans is to be rolled back, how can we ensure sufficient scrutiny of care plans? How can we ensure that care plans are of sufficient quality? The Guardians Role Childrens guardians already scrutinise care plans as part of their function within proceedings. They will be served with a care plan and if there are aspects which they do not agree with, they should address them to the local authority. The importance of this function within the guardians role should be emphasised.

Draft Children and Families Bill 5 (3A)

Independent Reviewing Officers Role As judicial scrutiny of care plans is to be more focused the role of the IRO will become increasingly important. The recent case of A and S (Children) v Lancashire County Council2 illustrates concerns about IROs abilities to advocate effectively on behalf of looked after children. The judgement raises the following issues with the of role IROs3; their status, training, caseload, access to legal advice and Cafcass referrals by IROs (there have only been eight referrals since 2004). We support the observations of Peter Jackson J in this case and endorse his recommendation that the performance of IROs needs to be improved. The Justice Committee highlighted IROs often large caseloads, of around 100-120 per officer. The performance of IROs can not be significantly improved whilst they are overburdened. Managing IROs workload should be a priority. Relationships between IROs, the courts and guardians need to be improved. Nagalro have suggested some steps which could be taken to support this: the introduction of a joint training initiative better protocols for joint working, and guardians to attend child in care reviews where appropriate.

The Department of Education has commissioned an examination into the roles of IROs which will examine how they are performing and how their performance can be improved and strengthened. We support this project and welcome the work being done to support IROs. Local Authoritys Role Local authorities play a fundamental role in the analysis and development of care plans and as judicial scrutiny of care plans becomes more focused, their role will be even more important. Local authority services could be improved in the following ways: Local authorities should provide specific training on how to formulate and draft high quality care plans. A good basis for this would be the current guidance provided in The Children Act 1989 Guidance and Regulations4. Local authorities need to focus on care plan development as a priority. Sufficient time and resources should be allocated to consideration of the care plan. Currently care plans are signed off by the local authority team manager. The quality of care plans would be improved if they were signed off by a higher level of management.

The role of other professionals: The roles of other professionals involved in the scrutiny of care plans could be enhanced. Ofsted: Currently Ofsted assess and report on local authorities. Ofsted could be required to report on care plans as part of their assessment. Ofsted would be well positioned to highlight deficiencies in reports in particular local authorities. Ofstead should not be required to report on individual plans but could identify themes and trends within local authorities which could prompt local authorities to examine the quality of their work.
2 3 4

A and S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) Ibid paragraph 199 to 217 The Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review

Children in care council: every local authority has to have a 'Children in Care Council'. The Council could have a feedback role in this process. This feedback could be a good indicator of trends, patterns and deficiencies in certain areas. The 6 month time limit What are the circumstances when cases should last longer than six months? In some cases a longer court process is beneficial for the child. For children, it can ensure that all viable avenues have been explored, thereby securing the best possible outcome. For parents, demonstrating that the court has taken time to make a decision allows for reflection and acceptance. If parents are unable to accept the outcome of a case it is much more likely that this will result in ongoing complaints, cross applications and potentially increased expense for bodies such as the NHS and local authorities. There are categories of cases that should be concluded far before the 26 week time limit that are often drawn out unnecessarily. The 26 week time limit will be particularly relevant in these cases. These include cases where: Where parents have evident, irresolvable parenting issues. The parents exhibit long standing substance misuse and no progress has been made. There have been children placed under local authority care before and the parents have made no progress. Older children who are beyond the control of parents refuse to go home.

Although the list is not exhaustive, cases may last longer than 6 months where: The biological father is unknown. There is a large extended family, where multiple family members are possibly viable carers. The case involves complex fact finding. The threshold has not been agreed. The child has complex medical needs. Other relevant proceedings are taking place and the outcome of the case is relevant to the care application. Other relevant proceedings are taking place and the disclosure of evidence involved in the case is relevant to the care application. The parent has substance misuse issues has started to address them and is progressing. The case involves domestic violence and the victim is the prospective primary carer. Pre-proceedings assessments of the child and family's circumstances were not done previously. An alternative carer appears at a later stage. There is an ongoing residential assessment of the parent.

How can courts decide which cases should fall outside the proposed six month time limit? There must be a balance struck between investigating every available option for the care of a child, proportionality and the damage that is caused by delay. There should not be a legislative outer limit for care cases each timescale should be decided in the best interests of the child. In order for courts to effectively decide which cases should fall outside the 26 week limit there needs to be a shared understanding about the exceptional and specific circumstances in which extensions can be granted by the court. Judges, practitioners, local authorities and parents will all need guidance on this. Potential pitfalls of the current framing of the 26 week time limit The proposed system allows for applications for extensions to be made for eight week periods. The timetable should not be extended by a series of eight week extensions but through the consideration of what is in the best interests of the child. Applying for an extension every eight weeks could lengthen the judicial process and increase the burden on judges. Eight week extensions also create a timetabling problem as recognised by the Justice Committee. When practitioners realise that it is not possible to conclude within 26 weeks, they will lose their slot in the queue for a final hearing booking causing further delay. We support the Justice Committees recommendation that the draft clause be amended to allow judges to identify cases that are likely to take longer than 26 weeks and to take such cases out of the 26 week timetable for an appropriate period of extension. The government has proposed to introduce legislation to ensure children have a relationship with both their parents after family separation, where that is safe and in the child's best interests. How can we ensure that court decisions are always taken in the best interests of the child? We share the Justice Committees concerns about the draft clause on shared parenting. The governments proposal to promote cooperative parenting through a legislative amendment to the Children Act 1989 will not promote decisions being made in the best interests of the child. We agree with the Justice Committee that the clause will cause confusion for legal professionals and the public. The majority of respondents from Wikivorce misunderstood the proposals as meaning 50/50 shared time. If the intention of the clause is not to change the current approach of the courts but to codify existing practice it is crucial that the Government make this clear. If the government is determined to introduce a legislative statement for cooperative parenting, this should be incorporated as part of the welfare checklist, rather than through an amendment to Section 1 of the Children Act. There is already clear guidance on the use of the welfare checklist which would help in clear application of the new principles relating to relationships with parents. Conversely the introduction of a new clause in Section 1 (2) of the Children Act 1989 could lead to uncertainty as to how different provisions interact with each other, causing further confusion and delay. The draft clause will be implemented at a time when there will be an increase in litigants in person and increased emphasis on mediation. The Justice Committee has predicted that at this time there will be a short term increase in cases as the public, lawyers and courts work out how the clause operates in practice.

Court decisions should incorporate the childs views. Childrens views are currently not being taken into account to any significant degree in the court process. There a number of best practice examples where childrens views are being taken into account, these include were: Children visit their Cafcass liaison officer independently of their parents. The Court is presented with a wishes and feelings report. The judge meets the children himself. Guardians are appointed to represent the views of a child.

We believe that what will matter is not what reassurances Ministers have given about the potential effects of legislation but how the legislation is interpreted by parents and the effect it will have on families.