What is happening?
A number of provisions in the act are intended to create a more efficient and effective family justice system, in turn improving the experiences of children and families who go to court. Specifically, the act:
- Introduces a maximum 26-week time limit (six months) for completing care and supervision proceedings in the family court.
- Ensures that expert evidence in family proceedings concerning children is permitted only when necessary to resolve the case, taking account of factors including the impact on the welfare of the child.
- Makes it a requirement for separating parents to attend a family mediation, information and assessment meeting to find out about, and consider, mediation before taking a decision to go to court.
- Introduces a requirement on courts to take the view that should parents separate, both should continue to be involved in their children's lives where it is safe and in the child's best interests.
Who will it affect?
In order for the 26-week target to be met, children's social workers will have to produce higher quality initial assessments to ensure cases are ready to proceed quickly from the off. Both they and local authority lawyers will be required to produce a more analytical summary rather than producing large files in support of applications. Cafcass guardians, who represent the interests of the child, will be involved in cases at an earlier stage of the process. The hope is that by cutting out delays, more children can be found a permanent home quickly, preventing potential harm to their development or exposing them to more risk.
Implications for practice
The introduction of a 26-week limit has wide-ranging implications despite the system having prepared for the new timescales for some time.
The judiciary has spent the past 18 months pushing through technical changes to the way proceedings work to assist efforts to meet the new target. Since last July, the number of hearings required in cases was cut and a timetable of 26 weeks was introduced for all cases.
Greater emphasis is now being placed on the first hearing - the case management hearing - with an expectation that assessments will be of a higher standard, meaning second opinions will not be required.
Meanwhile, the changes in relation to expert evidence formalise changes that were already in effect in courts since January last year when family procedure rules were amended to raise the bar for decisions on whether expert evidence was required in cases.
The old test of whether expert evidence was "reasonably required" was replaced with a new test of whether an expert is "necessary", something that is now backed up in legislation.
Unresolved issues
Concerns have been expressed that local authorities will struggle to meet the target. Statistics released by the Ministry of Justice in December show that in the three months between April and June last year, the average duration of care proceedings was 40.8 weeks. The figure has been falling each quarter since the end of 2011 when it stood at 54.6 weeks, but is still well above the new 26-week limit.
Some areas are likely to face more difficulty in hitting the new target than others. Between April and June last year, London was one of 10 English areas that had average case times of more than 50 weeks. It has been claimed that areas such as London face specific pressures that will make meeting the target harder. These include difficulty in recruiting and retaining experienced and skilled social workers, and pressure on courts.
The legislation does allow for the possibility of extending the time limit in a particular case for up to eight weeks at a time, but it is unclear how often this will be used by judges.
When deciding whether to grant an extension, the court must consider the impact that any timetable revision would have on the welfare of the child. The legislation also sets out that "extensions are not to be granted routinely" and "are to be seen as requiring specific justification".
