'Unlawful' family court agreement axed

By Joe Lepper

| 15 August 2017

A joint agreement aimed at tackling delays in care proceedings has been ditched amid concerns it is unlawful and could lead to collusion between social workers and family court guardians.

More than a third of care proceedings take longer to complete than the 26-week time limit introduced in 2014

The Association of Directors of Children's Services (ADCS) and the Children and Family Court Advisory and Support Service (Cafcass) published a joint protocol in February advising court guardians and social workers to work more collaboratively to speed up cases, and where possible divert them from court.

However, the agreement was criticised by guardians' association Nagalro and the National Association of Independent Reviewing Officers, who were concerned that it could undermine the scrutiny of cases, lead to collusion between social workers and guardians and even to children being taken into care inappropriately.

It has now emerged that the document has been withdrawn as a result of the concerns.

In a joint statement, ADCS and Cafcass said: "The agreement between ADCS and Cafcass about how local authorities and Cafcass can work effectively in a set of care proceedings and pre-proceedings was developed with the intention of improving the standard of social work and tackling delays in the family court.

"The document was never intended to undermine the independence of children's guardians, nor was it intended to shut out parents or their representatives from due process within proceedings.

"Due to concerns raised by some stakeholders we took the decision to withdraw the document in question. ADCS and Cafcass regularly promote good practice throughout the social work sector and will continue to look for ways we can work effectively in the best interests of children and their families."

Nagalro has also received a formal notification from Cafcass chief executive Anthony Douglas and ADCS family justice lead Andrew Webb that the protocol will no longer be used.

Nagalro chair Ann Haigh and policy officer Judith Timms said that the organisation had received legal advice that the document could not be lawfully implemented as it contravened the statutory duties of children's guardians.

"We have had grave concerns about the process by which it was produced and its content," said Haigh and Timms.

"Our legal advice is that where guidance issued by a public authority - in this case Cafcass - instructs its staff to act in a manner that is unlawful, the guidance itself will be unlawful and can be challenged as such by the courts through judicial review."

The decision by the ADCS and Cafcass to work more collaboratively on this issue stemmed from fears about rising care applications and continuing delays in care proceedings.

A 26-week limit on care proceeding was introduced three years ago, but Ministry of Justice figures for July to September 2016 showed that 37 per cent of cases were not completed within that timescale.

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