Special Report: Preventing care proceedings - Research evidence

STUDY 1

Child Protection Threshold Talk and Ambivalent Case Formulations in ‘Borderline' Care Proceedings Cases

Paula Doherty, Qualitative Social Work Vol 0,(2016)

This paper explores how practitioners talk about child protection cases on the edge of care proceedings, particularly reasoning and sense making around:

What categorises a case on the margin of care proceedings?

How are cases resolved and what considerations appear criterial in resolving such cases?

It draws on a case study funded by the Economic and Social Research Council and one local authority. The author was situated within teams for a year during which time she interviewed 62 practitioners and managers, and multi-agency professionals participated in four focus groups. Supervision sessions, case conferences, pre-proceedings meetings and informal case talk were observed.

Organisational factors - shifting terrains

While practitioners talked about a threshold for care proceedings, they also talked about the challenges of defining it when there has been no clear trigger incident.

Organisational factors contributing to this uncertainty included shifting organisational and policy terrains, changes in practitioners and management and the impact of high-profile media cases. Changes in knowledge and differing standards and values were also discussed. Discussions reflected "mixed feelings" about these cases of ambivalent status and the importance of regular supervision to making these complex decisions was emphasised.

Maintaining a level? Ups, downs and pushing elephants

The metaphors and idioms the practitioners used provide insight into how they were making sense of a child's situation. A sense of a reference point was implicit. For example, the coexistence of "peaks and troughs" were described with families having periods of time where they had maintained their situations at an acceptable level (the ups and downs of family life). Where cases had shown a levelling off, these were formulated in terms of whether this was "good enough", would be maintained, or would dip below what was acceptable once services were withdrawn.

Practitioners and managers made sense of cases in a way which often resulted in simultaneously drawing them in opposite directions: cases that "could go either-way". Some practitioners used language which demonstrated considerable effort without progress ("treading water"), or that the situation had deteriorated despite considerable effort (pushing an elephant up a hill and it rolling back down).

Sustaining a case: Propping up

Case talk demonstrated a sense of services potentially keeping a case at an acceptable level which would be unlikely to be sustained should services withdraw, typically referred to as the "propping up" of families, infused with notions of risk. Such situations were presented as not easily justified in the longer term. Consequently, decisions were bound up with moral rationalities about dependency and resources.

A critical event as a clear tipping point?

In resolving cases, practitioners talked about critical or significant incidents, or precipitating events, and indicated that these helped solve indecision about a case, tipping it into legal proceedings. After feeling as if a case was "going in circles", such incidents seemed to help practitioners justify when "enough is enough" to themselves and the child. The significance of different events, however, was not always clear with different roles within the team leading to a difference in concern over such events.

Where issues were "long standing" but not "high level", practitioners could be less confident of the evidence. The importance of critical incidents thus also turned on the value of these as evidence in court, which was constantly evoked as an audience.

Implications for practice

The findings make it is possible to identify the archetypal borderline case, the majority being:

• Neglect
• Long standing or prior involvement of children's services with the family
• No critical events.

They also demonstrate that just what constitutes significant harm or a threshold can be hard to determine. The concept of a threshold suggests that there is a definable point at which to intervene or make a decision and this is based on the notion that invoking a threshold is a linear and rational exercise (Platt and Turney, 2014). Such conceptualisation "fails to address the complexity of the decision-making process".

STUDY 2

Protecting Unborn and Newborn Babies

Judith Masson and Jonathan Dickens, Child Abuse Review Vol 24, (2015)

Child care policy in England and Wales increasingly emphasises early decision making, reflecting children's developmental timescales. Care proceedings need to be concluded within 26 weeks and, following judgments such as Re B, the adoption landscape has changed. These present challenges which must be balanced against human rights and the underpinning philosophy of the Children Act 1989 regarding children remaining within birth families where possible. Removing children at birth may be considered controversial, it may impact on breastfeeding and attachment, but at times it is necessary in order to keep children safe. These issues all highlight the importance of working with parents to safeguard children in a planned way with appropriate use of legal processes.

Masson et al's 2008 study found, of 386 sets of proceedings, only five per cent of the 23 per cent pertaining to newborns involved families previously unknown to children's services. In total, 65 per cent of newborn cases involved a substance misusing parent and serious domestic violence was present in at least half of the cases. Masson et al (2008; 2013) found three key factors present for newborns whose parents were not previously known to children's services:

• A higher proportion of mothers had learning difficulties
• Numbers misusing drugs or with mental health issues were lower
• Evidence of their capacity to care for a baby was lacking (due to no previous involvement).

Clearly, assessment before and after birth are crucial. Despite the emphasis on rehabilitation the majority of care proceedings result in the long-term separation of parents and children, with almost 4,000 children adopted from care in 2012/13 (Department for Education, 2013).

In 2008, the pre-proceedings process was introduced as part of reforms aimed at reducing the numbers of cases reaching court and the time taken to conclude them. Revisions were made in 2013, reducing the timescale further to 26 weeks and re-emphasising the importance of the pre-proceedings process as an opportunity to work with parents and assist them to make changes in order to prevent the matter being placed in the court arena. The reduced timescale was designed to give the clear message to parents of this as a final opportunity.

Masson et al and Dickens et al undertook the Edge of Care Study to increase understanding of the impact of the pre-proceedings process in six local authorities in England and Wales. Authority legal files were the primary source of information, alongside observations of pre-proceedings meetings, interviews with 24 parents, 19 parents' lawyers, 51 social workers, managers, and council lawyers, and a judges focus group. The sample consisted of 207 cases. Key findings from the research include:

• Care proceedings were avoided in a quarter of cases either due to improved parenting or alternative care arrangements
• Case drift was still evident
• Proceedings were no shorter nor less contentious than those which had not used the process.

A total of 30 per cent of cases were unborn babies and 75 per cent of these utilised the pre-proceedings process. Findings specifically regarding newborns include:

Fathers' involvement

Mothers remained the focus. Few letters were sent to those not living with the mother and separated fathers were less likely to attend the meeting when invited, or to instruct a lawyer. Ten of these cases were included in the observations, and in three of these it was not clear what attempts had been made to involve the fathers.

Immediate protection

Proceedings were typically commenced prior to hospital discharge (60 per cent). There was less urgency for those remaining in neo-natal care, and an Emergency Protection Order was sought for only one baby. Ten babies were in foster placements prior to commencement, with parents having agreed to this as part of the pre-proceedings process for eight of these, and protective placements were agreed for three mothers and babies.

Outcome

Of the 44 babies who became subject to proceedings, 11 remained with or were returned to parents, seven lived with relatives under the auspices of an order, and 25 had a plan for adoption (one case was still in proceedings). Babies returned home in four of six observed cases where previous children had been removed, two of these with no order.

Implications for practice

In this sample, diversion was achieved in a quarter of all cases so the pre-proceedings process can be said to be effective. Regarding new and unborn babies, the process is designed to enable pre-birth assessment and fairer working with parents, providing an opportunity to make changes in a timely way before commencement and the additional time pressures this brings.

STUDY 3

Factors That Influence Engagement In Pre-Proceedings Practice: Presenting the Roles of Professionals Working Within The Family Justice System Through Personal Narratives

Kim Holt and Nancy Kelly, Journal of Social Welfare and Family Law Vol 38, (2016)

The introduction of a 26-week deadline for the completion of care proceedings, and a directive to resolve disputes prior to making an application to court wherever possible, has changed experiences and workplace cultures for practitioners working with cases on the edge of care. This qualitative, longitudinal study was carried out in three local authorities engaging in pre-proceedings practice with 132 families in England between 2009 and 2014 to explore practitioners' narratives about working within the new legislative framework.

Legislative reforms

The introduction of the Public Law Outline 2008 (PLO), The Legal Aid Sentencing and Punishment of Offenders Act 2012 and the Children and Families Act 2014 were seen as part of a family court agenda to ensure that children were kept at the heart of planning and to reduce delay. Where appropriate, families in the pre-proceedings stage have an alternative form of dispute resolution open to them and may be successfully diverted away from court. However, the authors have previously suggested that at the heart of the reforms was an aim to reduce public expenditure by cutting the costs of childcare proceedings. They have also suggested that attempts to divert cases could simply introduce another delay for children while the council prepares the evidence to make an application to court. This is important because the success of pre-proceedings work is gauged not only in terms of cases diverted away from court that remain diverted, but also overall minimised delay for the child.

Findings

Study findings suggest that participants perceived a dominant economic narrative different to the child-centred narrative cited as influencing policy and practice. They considered the drive to reduce delays in court to be a means of reducing court time and costs with the consequence that the burden of responsibility in terms of time and resources is bolted on to already overstretched local authorities facing major budget cuts. For example, one participant said:

"If parents ‘wake up' during proceedings that can be very costly for everyone with the implication that it is better for parents to recognise concerns before the local authority takes compulsory action."

Another said: "I haven't seen anything substantively change. The thing that has changed certainly is the cost to the local authority."

Some practitioners also felt that the focus on achieving alternative forms of dispute resolution in the most complex cases did not support families or contribute to best outcomes for children but had rather resulted in further steps being taken at the pre-proceedings stage that did little to reduce overall delay for children.

However, there was evidence that case durations were significantly reduced in some locations and that this was impacting on proceedings timescales. Furthermore, families and their legal representatives were said to have found the earlier involvement of the Children and Family Court Advisory and Support Service (Cafcass) to be beneficial, while the pre-proceedings meeting "stops that element of drift and it stops parents feeling in limbo".

In some cases, professionals felt able to challenge the perceived economic narrative of the pre-proceedings protocol. Where professionals were able to work alongside families, they:

• Experienced the legal and policy changes as an opportunity to provide families with support that they otherwise would not have been able to offer
• Felt more confident in being able to identify both families' strengths and areas that required further work
• Believed this impacted significantly on the quality of decision-making.

Implications for practice

The authors believe policy remains directed at reducing costs through increased procedure, rather than working with families with professional discretion. However, the findings also suggest that this can be challenged with the following actions:

• Seeking to identify and work with evidence of capacity for change is the starting point for successful pre-proceedings
• Pre-proceedings protocol does give parents a last chance to change, if motivated and able to do so within the child's timeframe
• Being very clear of what is required from parents at the outset, and involving the family as part of the development plan, may enable further change
• Parents are more likely to understand the process by having legal representation at the pre-proceedings meeting
• Clarity about the organisation of pre-proceeding assessments is needed - authorities were willing to fund pre-proceedings assessments such as parental drug and alcohol testing as, should they go to court, they could have greater confidence in their evidence.
  
  

STUDY 4

Connecting Events in Time to Identify a Hidden Population: Birth Mothers and Their Children in Recurrent Care Proceedings in England

Karen Broadhurst, Bachar Alroud, Emily Yeend, Judith Harwin, Mike Shaw, Mark Pilling, Claire Mason and Sophie Kershaw, British Journal of Social Work Vol 45, (2015)

There is international concern about the numbers of birth mothers experiencing repeat court-ordered removal of children. This study aims to increase understanding of this and consider practice implications. Current literature largely concentrates on the outcomes for the children, with little attention paid to the life course of the parents.

The authors used the Children and Family Court Advisory and Support Service (Cafcass) data to create two data subsets in order to:

• Produce a profile of cases
• Estimate probability and timing of recurrence
• Consider the relationship between recurrence and maternal age.

This article reports first stage findings from September 2014 to June 2015 and encompasses cases commenced and concluded from 1 April 2007 to 31 March 2014. This represents 43,541 birth mothers and 85,452 children.

"Index episode" refers to the mother's first appearance in the dataset and therefore first experience of care proceedings.

Profile of mothers

There were 284 mothers aged under 15 (legal minors and therefore children themselves) at index episode, and 1,682 (four per cent) aged 16 to 18, giving 13.3 per cent as teenage mothers at index episode.

Unfortunately, 8.3 per cent of these mothers experienced their first repeat care proceedings while still in their teens, and 3.9 per cent their second repeat within those years. Women aged 30 or above represented 42.3 per cent of the total at index episode and they experienced proportionally fewer first and second repeats, 35.1 and 36.7 per cent respectively. This suggests a link between age and recurrence.

The study used the Life Table methodology to look at recurrence and found almost a quarter of mothers were likely to be subject to repeat proceedings within seven years, with the first three years after index episode the most likely period for this. Further work found almost a third of those aged 19 and under were likely to be subject to repeats within seven years.

Profile of children

It should be noted that recurrent proceedings can concern newborns as well as children previously involved in proceedings. At index, 43.3 per cent were infants (less than a year old) and 19.1 per cent aged less than one month; at first and second repeat these figures were 70 and 60 per cent respectively, a significant increase. These figures suggest local authorities tend to issue very early when there is a history of proceedings.

Legal outcomes

Adoption increased with repeat episodes; at index it was 28.7 per cent, first repeat, 43.9 per cent and second repeat 50 per cent, indicating this became the preferred option for courts and councils in recurring proceedings.

Intervals between proceedings and the recovery window

The median interval between proceedings was 17 months, which is short given the timescale for proceedings. Worryingly, 36 per cent of first repeats overlapped with index episodes, and 21.8 per cent of second repeats demonstrated overlap. Some mothers were therefore subject to continuous proceedings or experienced multiple losses within a very short timeframe, which does not allow a realistic period for recovery, particularly in relation to mental health or addiction issues. Issues relating to rapid repeat pregnancy merit further work in order to inform understanding of maternal and foetal health risks.

Implications for practice

These findings raise key questions regarding rehabilitation, particularly in relation to mothers who are still children themselves at index episode. Work needs to be undertaken to understand the impact of this experience on their continued development and whether this loss may contribute to further maladaptive characteristics such as substance misuse.

Given the short recovery window evidenced, it may be argued family courts subscribe to a view of "natural recovery" whereby mothers "age out" of problems or bring about change for themselves (Toneatto, 2013). The findings suggest this is not applicable since there are successive repeats. This highlights the issue of what work is being undertaken with these mothers to assist them once their first child is removed.

More positively, innovations such as the Family Drug and Alcohol Court and the Pause project indicate movement in the direction of effectively assisting parents. Greater roll out of such programmes is needed in order to bring about meaningful change.

FURTHER READING

Related resources:

Concluding Care Proceedings Within 26 Weeks: Report of the Evaluation of the Tri-borough Care Proceedings Pilot

Pre-proceedings: Helping children, saving court resources

Partnership by Law? The pre-proceedings process for families on the edge of care proceedings Families on the edge of care proceedings: the operation and impact of pre-proceedings processes in children's social care

Related resources by Research in Practice:

Court Orders and Pre-proceedings website

Recurrent care proceedings: Working with mothers at risk: Webinar

Pre-birth assessment: Webinar

Impact of the Family Justice Reforms on Front-Line Practice Phase One: The Public Law Outline


This article is part of CYP Now's special report on preventing care proceedings. Click here for more