MoJ study backs retention of two representatives for children in care proceedings

By Joe Lepper

| 21 May 2018

A government-commissioned study has concluded that children should continue to receive dual representation during care proceedings, despite increasing demands on resources.

Concerns have been raised about increased demands being placed on family courts. Illustration: Ben Tallon

The Ministry of Justice, with the support of the president of the High Court's Family Division Sir James Munby, had been looking into whether there was scope for reducing the level of representation provided through the "tandem model", which requires that a child in every care case is represented by a Cafcass guardian and local authority solicitor.

In recent years there has been growing concern about levels of care applications and resultant pressure on the system, with Munby warning in 2016 that the court system was being overwhelmed.

The children's guardian and the solicitor for the child are appointed under section 41 of the Children Act 1989.

Munby, who is due to retire in July, has previously said that while he did not want to "prejudice the fundamentals of the tandem model", could be "scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child's professional team" at certain stages of proceedings.

But a Ministry of Justice study investigating the effectiveness of the model, found that both roles offer distinct support that is beneficial to children.

In backing the retention of the existing system the study found that it was important for children to have their welfare needs met by Cafcass guardians and legal issues covered by a solicitor or barrister representing them.

Cafcass guardians were also found to offer a distinct mediation role between families, children's professionals and courts that helps limit delays. Cases where a guardian was not present were more likely to involve disagreements and delays, the study found.

"Professionals emphasised the strength and value of the tandem model and overall did not believe that any amendments, or adoption of an alternative model of children's representation, was required," states the study.

"There was consensus that the model was working well with professionals adapting to stretched resources to ensure their respective roles contributed to making decisions in the best interests of the child.

"Judges tended to report that care planning decisions would be subject to increased risk without the guardian's independent scrutiny."

But the study does note that despite support for the tandem model it is only being used in less than half (46 per cent) of cases.

Judges indicated that they wanted to see the model used more widely. They said that in more than half of cases (55 per cent) the model was considered necessary. In just 30 per cent of cases they thought that only a legal representative was needed.

Some judges involved in the study suggested introducing a formal process to assess on a case-by-case basis whether a guardian and lawyer are both required to represent the child.

The study concludes that it may be worth exploring whether guidance should be introduced for courts should such a formal process be introduced, outlining the distinct value of each role to children.

"This guidance could outline that the assessment must be continually reviewed by the judge, guardian and solicitor during proceedings, and include the option to redirect or excuse representatives as the case necessitates," adds the study.

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