Professionals prepare to cut delays as 26-week care case limit looms
Monday, May 13, 2013
Local authorities, family lawyers and the court system are gearing up to confront radical changes to the care proceedings system in a bid to ensure the majority of children can be found a home within six months.
The last time the length of completed care proceedings averaged less than six months, Prime Minister John Major was launching his “Back to Basics” campaign and Ukip was being formed.
But since those days in 1993, the average time of public law cases has increased as delays and rising numbers of applications have taken their toll. By 2011/12, the length of the average case stood at 54 weeks. Legislation now passing through parliament aims to halve that.
Once the new limit comes into force next April, all cases must be completed within 26 weeks, apart from a small number of cases that judges rule to have “exceptional” circumstances. A central plank of ongoing family justice reforms, the hope is that cutting out delays will mean more children can be found a permanent home quickly, preventing potential harm to their development or exposing them to more risk. But is this achievable?
Although the average length of cases in England has fallen since 2011/12, case duration for the period October to December 2012 – the most recent available – was still 45 weeks. Indeed, no single judicial area has succeeded in averaging less than the new 26-week limit for that three-month period. The closest effort was from Lincolnshire (see Lincolnshire leads the field, below), which averaged 27 weeks.
Meeting the target
Despite the apparent size of the challenge, Sir James Munby, president of the family division of the High Court, says the 26-week limit will be achieved, stating that “it can be met, it must be met, it will be met”. The judiciary has been busy pushing through technical changes to the way proceedings work to assist efforts to meet the target.
In January, 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”. Meanwhile, from July, the number of hearings required in cases will aim to be cut and a timetable of 26 weeks will be introduced for all cases. As part of this, greater emphasis will be 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.
A trial of similar arrangements in the tri-borough area of Hammersmith & Fulham, Kensington and Chelsea, and Westminster, has produced impressive results already. The Care Proceedings Pilot, which began in April last year, attempted to cut delays by reducing the number of hearings per case from an average of 8.8 to just four. There were also concerted efforts to improve the quality of local authority evidence presented to the court. Cafcass guardians, who represent the interests of the child, were involved earlier in case analysis. As of October last year, six cases had been completed in an average time of 14.2 weeks and with an average number of 3.7 hearings.
Andrew Webb, president of the Association of Directors of Children’s Services (ADCS), says cases that begin after 1 July this year will go through the system more quickly because of changes to the process. “The evidence is that if you change your system and everyone works together, it is possible to achieve the 26-week target,” he says. But he concedes it will be a challenge.
“We have spent the past 21 years developing a system for the Children Act 1989, and over the next six months we are going to significantly change the culture we have spent 21 years developing.
“That is going to be a real challenge for us. I expect there to be some pretty turbulent periods in some places. Local authorities, family lawyers and the court system are adjusting at a different pace or want to do it in a different way.”
He says one of the most important things to get right will be the assessment period before going to court. “The expectation is for a significantly reduced amount of paperwork – reports need to be far more analytical and less comprehensive,” he says.
“Social workers and local authority lawyers will be challenged to do a much more analytical summary rather than the very large files that are currently being submitted in support of applications. That makes a big difference to the whole process.
“Local authorities will have to change the way they record their assessments and in some cases carry out assessments. Some have significant issues to tackle in the way social workers operate.”
Alongside Cafcass, the ADCS is producing a series of guidance notes to help social workers. Webb insists the move to a more streamlined assessment process will not place children at risk.
“There is more danger in the current system of children’s needs not being met than in the changed system,” he says. “There will be much more decision making based on what is happening at the time rather than what was going on a year ago. It is absolutely in the best interest of children to do this.”
However, Maud Davis, co-chair of the executive committee of the Association of Lawyers for Children, says under-resourced local authority areas will struggle to meet the targets.
“Where you have local authorities who are able to recruit and retain experienced and skilled social workers, the target is achievable,” she says. “But in London, there is huge pressure on the courts, quite a high churn of social workers in lots of local authorities and lawyers under pressure due to reducing legal aid rates.”
London is one of 10 (out of 40) English areas that have average case times of over 50 weeks, with Watford the highest at 70 weeks.
Davis says it is always in the best interests of the child to “go hell for leather” to complete proceedings as quickly as possible, but adds it can take “time to get it right” if there is a realistic chance of them staying with parents or a family member.
She believes judges need to have a degree of discretion in judging which “exceptional cases” can exceed the time limit. “I suspect there will be a number of appeal cases needed to determine what will be ‘exceptional’,” she adds.
Anthony Douglas, chief executive of Cafcass, says that if the 26-week limit is achieved, the benefits will count for little if other areas of the process are not timely as well.
“If we speed up the court process, it is still only one element. You have to look at the time since the child was referred to make sure there is no drift in pre-proceedings and that children are placed for permanence pretty quickly when there is a decision,” he says. “If there are delays at either end, then much of the work to speed up the court process isn’t going to have the effect we want.”
Lincolnshire leads the field
Lincolnshire’s performance on average case duration between October and December 2012 of 27 weeks places it ahead of the pack in the race to meet the 26-week target.
Janice Spencer, assistant director of children’s services at Lincolnshire County Council, says the authority is reducing case times through proactive “early intervention” work with families who may have their child or children removed, or where a parent has a conviction or caution for an offence against a child.
The system involves social workers building up a comprehensive picture of the circumstances of the child within the family environment, alongside a Cafcass guardian.
“Usually, Cafcass doesn’t appoint a children’s guardian until an application is before the court, but it has agreed to work alongside us before the court process where there is parental consent,” Spencer says. “Some parents don’t want to engage, but parents that do engage get legal representation.
“We come together with them, say what our concerns are and evaluate the risks – undertaking parental assessments, looking at the viability of other family members and work out a very clear plan of what we want to achieve.”
The system, which has also been trialled in Coventry and Warwickshire, cuts the amount of work required before the case goes to court, should a care application be the eventual outcome.
“Historically, you would go into court and tell the judge you have made an assessment, but the guardian (if appointed once the court case is under way) may recommend an expert assessment,” Spencer says.
“The parents may also have asked for a separate assessment, so you could end up with four experts involved.”
She adds: “Under this initiative, the assessment is jointly instructed so there is no need for an expert.”