Over the past three years in England, children subject to care proceedings have, on average, spent 46 weeks in the family justice system, nearly double the 26-week target set out in the public law outline (PLO).
Research by the Association of Directors of Children’s Services (ADCS) and the Children and Family Court Advisory and Support Service (Cafcass) has shown that delays to care proceedings are harmful for children and create additional anxiety, damage to education and disruption to sibling relationships.
It is for this reason that “going hard after delays” is one of the major themes in the new Cafcass’ strategic plan (see below), explains its chief executive Jacky Tiotto.
The organisation employs around 1,700 children’s social workers and 500 other staff to look after the interests of children subject to both public and private law family court proceedings and is a key player in system-wide efforts to re-establish the 26-week PLO timetable after it was relaunched in January 2023.
Early discussions
While the Covid-19 pandemic was a major factor in the rising duration of care proceedings, it is not the only one, explains Tiotto, who joined Cafcass in 2019 after being director of children’s services at Bexley Council.
She highlights the high proportion of “short notice cases” to the court – care applications from local authorities with less than seven days’ notice – as creating a delay because a plan for the child must be started from scratch.
“As a system, we have to ask ourselves what’s going on if 68 per cent [of applications] are being served at short notice,” Tiotto says. “If you’re removing a baby or if you have a police emergency protection, then maybe it needs to be the same day, but it’s not the case for 68 per cent. We need to deal with that as a system.”
To that end, Cafcass is working with the Courts and Tribunal Service and 25 local authorities as part of a Department for Education-commissioned project to share information between the child’s social worker and the Cafcass guardian involved in the case, which will take place after the issuing of care proceedings but prior to the first case management hearing. If successful, the five-month pilot, which ends in December, could be extended more widely.
The ADCS and Cafcass analysis identified that preparation for the initial case management hearing may be improved if a Cafcass guardian has clearer understanding of work undertaken with the child and family prior to and in pre-proceedings, and whether that has had a positive change for the family.
Tiotto explains that the pilot aims to help guardians and social workers understand whether there are likely to be additional family members who can be identified to look after a child subject to care proceedings.
“Sometimes that’s about planning and sometimes about knowing early on there are family members who could look after that child that we, or the local authority, haven’t found yet,” says Tiotto. This process “takes time”, she admits, but adds that “finding family members is something we need to invest in early so we know about them when we issue proceedings”.
She adds: “It requires a mindset which starts with children are best brought up in their family. That’s what we need to work to, but it’s not without its challenges – family members are often not visible or have not had contact with them for a long time.”
Expert evidence
Another factor in delays is the use of expert witnesses to give evidence in children’s cases.
“The presence of an expert delays proceedings,” says Tiotto. “From our perspective, the longer a case is open, the more reports and reporting you have to do.”
She points to recent comments by the president of the Family Court that challenges Cafcass and local authorities to consider whether the social worker assessment provides sufficient evidence to make decisions about a child’s future and for experts to be used only in exceptional circumstances.
“Sometimes judgments are finely balanced and you do need an expert,” she says. This could be in cases involving substance misuse or mental health.
“It has to be that professionals, whether at Cafcass or local authorities, have confidence in their expertise as social workers,” she explains.
“That confidence has been hit hard from 20 years of difficult press reporting when things go wrong. Sometimes we think we need an expert because our professional standing might be in question and actually the president of the family court has come out and said, ‘stand by your judgment and present your evidence well, be confident in questioning’.
“That’s what we need to focus on between us – which is the point of strengthening the conversation at the start of proceedings.”
While practitioners should have a “clear timetable” for meeting the 26-week PLO target, what that looks like will vary from child to child and its success depend on how well the council and Cafcass work together, explains Tiotto.
“We want to strengthen that relationship so the social worker and guardian are very clear on each others’ positions early on,” she adds. “It should be about what the right outcome for the child is. We should all stop and ask ourselves why should that take more than half a year?”
Tiotto admits there are times when Cafcass is responsible for delays in proceedings – in areas where there are staff shortages, protected caseloads or inexperienced staff. That is why the new strategic plan aims to “go harder and faster” on tackling regional variation in the length of care proceedings.
“We’re part of a family justice system that needs to have that flexibility locally but a young person wherever in the country [they are] should expect the same good experience – that’s a serious part of our practice improvement priority,” she adds.
Demand
There are around 22,000 public law cases open at any one time, and generally the number of children subject to section 31 care applications has risen since 2008.
However, the trend has shifted this year with an eight per cent fall in section 31 applications between April and September 2023 compared to the same period in 2022. Tiotto says the drop has gone on long enough to think it’s not a momentary blip, but admits Cafcass is not yet sure of the reasons for it.
“I hope it’s because of the attention on the pre-proceedings work and trying to help families when the child protection plan isn’t working,” she says. “That would be great if it is about that, but it’s too early to say.”
An area of demand that has grown significantly over the past few years and which is of serious concern to Tiotto is the rise in deprivation of liberty orders (DoLs) placed on children by the courts. Cafcass figures show there has been a 3,000 per cent rise in DoL applications since 2016/17, and that data for the most recent quarter shows a 14 per cent rise on the same period last year.
The orders, which place restrictions on young people’s movements because of concerns about their safety and behaviour, can go on for long periods, prevent children accessing education and leisure, and are unclear over what needs to change for them to cease. In addition, many end up in unregistered placements due to a shortage of secure settings.
“We don’t have a serious enough commentary about why there’s been that increase,” says Tiotto. “A lot of children subject to those applications have mental health difficulties surrounding their desire to self-harm. I want us to have a national debate about this. It is very difficult for the guardian to approve those applications, but the child has to go somewhere.”
Rising mental health needs among children generally, limited early intervention to prevent problems escalating and a shortage of specialist residential placements are all factors fuelling the rise, says Tiotto.
“It’s a small secondary ever year whose liberty we are depriving,” she says. “That’s not unmanageable in terms of a response. But getting up stream and thinking about what children need as soon as they have mental distress is important.
“I feel worried for those children and the professionals around them because you can be sure that when an accident happens it will be the professionals that get questioned about why they didn’t do X or Y.”
Just like delays in cases, the rise in the use of DoLs reflects a system stretched at the seams, and illustrates the extent of the challenge Cafcass and others face going forward.
TIOTTO ON STRATEGIC PLANS
Dialogue with families
“Explaining to families this difficult thing is a big part of our achievement in the past three years. We are committed to sharing recommendations with children – we need to do it in every case. For parents, there’s nothing more important than their children and for children it’s the same – therefore, understanding the implications of why you can’t live or have contact with them is important to be able to process that event.”
Workplace environment
“Our staff survey shows nine out of 10 said they were confident in their managers’ skills. No one has said their workload is manageable, but they are saying they notice we are doing things about it. Strategically, the big focus over the next three years is about what a good workplace feels like – for social workers and non-social workers as you need the whole machine focused on children.”
Social work training
“The Cafcass Academy is recruiting for its fourth cohort [of social workers]. The first cohort is in the system and happy. It costs us a lot to have the academy, but we want to grow our own. We pay the salary in their six-month placement, we don’t charge for that. It’s a cost to us that makes it gold plated. We’d like to become a much bigger academy.”
Workforce retention
“We’ve got to do something serious on retention. Our average turnover of social workers last year was 15 per cent. We were trending at an average of nine per cent pre the pandemic, half the rate of local authorities. We’re capable of recruiting people – our issue is that we train them, they become very experienced and skilled, credible in court, and are then attractive to local authorities.”
