Operation of the Family Courts - Justice Committee Contents

Written evidence from Jill Canvin, Children Panel Solicitor, Dr George Hibbert, Consultant Psychiatrist and Clinical Lecturer, Oxford University (FC 07)



There needs to be a solution to the delay and costs of public law care proceedings in the Family Courts. These problems arise primarily from a lack of confidence in the evidence presented by Local Authorities, so that independent experts are instructed to assess families resulting in a terrible waste of time and money. A validated, reliable and standardised assessment of parenting by social services would:

  • Reduce the workload for CAFCASS by avoiding duplication of social work responsibilities and instead focus their role on care planning and protecting the interests of children.
  • Reduce charges to the legal aid budget, as well as pressure on Court time, by reducing the need for independent expert assessments, contested hearings and the duration of care proceedings.
  • Money saved from funding expert assessments would be available for legal representation, thereby increasing access to justice.
  • Rather than mediation, offer an approach, by improving their ability to assess parenting, for social services to make more timely decisions, prior to intervening legally in those families where children are at serious risk, which in turn may help to reduce the failures to protect children that are repeatedly described in Serious Case Reviews.
  • Improve transparency and clarity about decisions in public law cases in the family Courts, reducing controversy.

We propose and describe a parenting assessment, suitable for use by social services in the community, which would achieve these outcomes.


1.    The effect of CAFCASS's operations on Court proceedings, and the impact on the Courts of the sponsorship of CAFCASS by the Department of Education

2.    Social services sometimes fail adequately to assess families so Children's Guardians are needed to comment on Local Authority evidence to the Family Courts.

3.    Unfortunately, the quality of Guardians has declined considerably over recent years and their management is poor. Often the managers have no experience of public law work but come from the background of Court welfare or probation. CAFCASS' response to their budgetary difficulties has been to reduce their input to public law cases, introducing the unsatisfactory role of "duty Guardian", often being unable to provide a permanent Guardian at the beginning of the case, not attending meetings and providing poorly focused input.

4.    We have a proposal which would provide a rational basis for Guardians to reduce their workload while targeting more specific areas in the Court process to which they add value. This would be achieved by enabling social services to make more consistent, reliable and fair assessments of parenting so that there is no need for Guardians to check and advise the Court on whether parents have been assessed adequately but instead to concentrate on their core work, such as care planning. This would represent a constructive approach to reducing the demands on CAFCASS.

5.    The impact on Court proceedings and access to justice of recent and proposed changes to legal aid

6.    The impact of changes to legal aid is to:

  • Reduce the number of experienced Children Panel solicitors to represent children in public law care proceedings.
  • Reduce the number of experienced solicitors to represent parents.
  • Both of these changes leading to the risk of poor quality advice and representation, restricting lawyers in representing clients adequately and in some cases no legal representation causing more difficulties for the Courts.
  • Reduce the number of public funding certificates or restrict them, resulting in an inability to contribute towards disbursements such as expert assessments.
  • Threaten the human rights of families.
  • Add to the poor public perception of the family Courts which are already criticised for being secretive and unfair.

7.    A consistent, standardised assessment of parents, accessible and understood by the public, will reduce the time and funds spent currently, through the legal aid budget, in agreeing, arranging, instructing, coordinating and chasing independent expert assessments. This work, mainly conducted by solicitors for children, can lead to a case no longer being within the fixed fee scheme by taking it into the high cost category. Further, by avoiding the ordering of a series of independent expert assessments, carried out by a variety of disciplines and each with its own waiting time, duration and cost, there would be a marked reduction in harmful delay for children, a reduced need for Court time and a massive saving of public funds.

8.    Savings from the legal aid budget due to reduced spending on expert reports would release much needed funds for legal representation.

8.    A nationally accepted, standardised assessment of parenting would reduce the need for contested hearings. By being transparent and accessible to the public it would also reduce the controversy and anxiety currently surrounding the removal of children from their parents.

9.    Our assessment addresses these issues and would largely remove the need for independent expert assessments, thereby avoiding delay for children and saving taxpayers money. The legal aid bill for public law family cases for the year to May 2010 was £252.6 million. In addition, Local Authorities carry the full cost of any residential assessment and their share of any other expert assessments. By our calculation our assessment will bring overall savings of more than £125 million a year.

10.  The role, operation and resourcing of mediation in resolving matters before they reach Court

11.  We do not believe that there is a role for mediation in public law care proceedings. It is too much to expect families to agree to the permanent removal of their children.

12.  However, our extensive experience, confirmed by a recent Demos report (In Loco Parentis, 2010), is that social services do not have a consistent approach to deciding when they can no longer work on a voluntary basis with families and recognising that the threshold for intervention via the Court has been reached. Usually the decision to make an application for a care order is precipitated by a crisis rather than by any systematic gathering of evidence. This failure led to the lack of legal intervention in the cases of Peter Connolly, Khyra Ishaq and Victoria Climbie. If social services had a standard way of assessing families they could intervene sooner.

13.  Our assessment, although initially designed for Court proceedings, lends itself to enabling social workers to introduce a consistent approach to reviewing the progress of social interventions and deciding whether children can remain with their families.

14.  Confidentiality and openness in family Courts, including the impact of the recent changes in the Children, Schools and Families Act 2010

15.  Whilst the interests of the children have to be paramount, the public also have to be sure that decisions which result in the permanent removal of children by adoption or long term fostering are based on sound evidence and fair assessment of families.

16.  The assessments currently undertaken during public law care proceedings are carried out inconsistently, both within and between professional disciplines. They often cover matters, such as prognosis and treatability of parents, which are beyond the original intention of the Children Act 1989 and the expectations expressed in the House of Lords decision in Re: G Courts often, for lack of choice, knowledge and understanding of CVs, appoint experts who have little real expertise and should not be advising Courts. Further, the assessments and procedures of Local Authority social workers are frequently idiosyncratic and incompetent, as is repeatedly found in Serious Case Reviews and Ofsted reports. This leads to inconsistency within and between Local Authority areas and between families. These causes for uncertainty and unpredictability put an intolerable strain on families, cause harm to children and rightly raise public concern. There needs to be public confidence that children are not being removed unreasonably or left with dangerous families when they need to be protected.

17.  We are proposing a standardised and validated assessment of parenting which would be adopted nationally by all Local Authorities for use in public law care proceedings. A respected assessment by Local Authority social workers would have the additional benefit of improving their expertise, standing and morale and give them the confidence to intervene more quickly with dangerous families.

18.  Our proposed solution:


19.  We are offering a solution to the well rehearsed problems affecting the working of the Family Court by proposing a new approach to the assessment of parenting by social services. An expert assessment at the earliest stage of care proceedings, working to firm deadlines, with clear expectations of parents, will provide the Courts with clear, valid and timely evidence for their decisions while reducing the costs of doing so.

20.  It will reduce the typical assessment period to 15 weeks, reducing the delay that damages children, causes anguish to parents, frustrates and demoralises social workers and generates huge expense to the taxpayer.

21.  Background to the Tadpole Parenting Assessment

22.  Our assessment has been prompted by our recognition, endorsed by a recent Barnardo's report, that because Local Authority social work assessment of parents is currently often poor and not acceptable as sufficient evidence on which to base a final decision about the child, Courts have been obliged to order additional expert assessments, which introduce delay and expense.

24.  These independent expert assessments have the weakness of being largely based on interviews with the parents with little observation of actual parenting. Psychologists frequently rely on psychometric testing which has little evidence of validity in predicting quality of parenting. Occasionally families have residential parenting assessments, lasting three months or longer, where their actual parenting is observed but this is hugely expensive. In some areas there are community family centres where parenting may be observed as part of the Court directed assessment. There is no nationally agreed standard or quality for any of these assessments.

25.  Currently Court proceedings are regarded by social workers as baffling, unpredictable and demoralising, largely reflecting their experience of finding the evidence they present being treated as unreliable and insufficient. This makes social workers reluctant to make an application to Court even when they know that a child is suffering significant harm. In Loco Parentis (Demos, 2010), shows how delay in removing children from an abusive or neglectful family harms their future mental health and behaviour and increases long term costs. It concludes that one in three children who should be taken into care are being left with neglectful or inadequate families.

26.  In the foreword to the Protocol for Judicial Case Management (2003) the President, Lord Chancellor and the Secretary of State for Education and Skills noted that the average care case was lasting nearly a year: "a year in which the child is left uncertain as to his or her future, is often moved between several temporary care arrangements, and the family and public agencies are left engaged in protracted and complex legal wranglings." The Protocol and the subsequent Public Law Outline attempted to reduce delay. The efforts made by the judiciary to bring the problem under control are hampered by Local Authorities' inability to produce sufficiently robust evidence for the Courts to make a decision.

27.  The Assessment

28.  The Tadpole Parenting Assessment is based on systematically observing the behaviour of parents, in their home, at contact and at other appointments, over a limited period of time.

29.  Its aim is to do what the Children Act 1989 requires by providing evidence of current parenting.

30.  To achieve this, specialist assessment teams would be developed within Local Authorities. They would be entirely separate from the case working teams, with clear boundaries imposed to ensure independence. They would be trained to undertake standardised observations of parents' behaviour relevant to good enough parenting; through home visits, appointments in the community, liaison with other agencies and by observation of contact.

31.  The parents will be expected to show that they can:

  • Consistently dress, feed, keep clean, be affectionate and protect their child;
  • get their child to school on time, ready to learn;
  • provide a home where he or she can achieve normal development;
  • manage their own and their child's behaviour without over-harsh discipline;
  • protect the child from harm;
  • organise everyday life adequately; and
  • cooperate with professionals and show a capacity to recognise their own failings and accept guidance.

33.  It will include testing of IQ and for substance misuse and assess whether they are in contact with risky individuals.

34.  The assessment will begin, if directed, after the first hearing. There would be an initial period of grace—usually no more than three weeks—for preparatory work, which would include explaining the assessment to parents and their family and establishing a network with other relevant agencies. There would be an opportunity for demonstration and help with basic parenting skills and other essential input prior to the start of the assessment itself. Expectations of the parents would be clear and once the assessment starts they will be expected to show they can maintain good enough standards throughout the assessment period, the duration of which can be case managed by the Court.

35.  The pre-assessment period and the assessment itself would be sufficiently flexible to accommodate changes in the child's placement in light of the parents' progress and includes an assessment of parents' capacity to change. Any extension of the timescale would only be agreed by the Court for a clear, agreed purpose and duration. For example, during the assessment it may be appropriate to introduce a staged rehabilitation of children home to test out any apparent progress. The assessment of parenting would proceed in parallel with any necessary additional assessments of the child, such as paediatric or child psychiatric assessments.

36.  In order to be open with parents and the public, the assessment will be standardised nationally and will be spelt out in simple language. Parents will get regular feedback in a clear, standardised form to give them an opportunity to change if they can. The results of the assessment will be presented to the Court in a way which makes clear what aspects of the parents' behaviour is compatible with and what is incompatible with good enough parenting.

37.  The assessment will be validated by nationally recognised experts in relevant aspects of parenting. The transparency and clarity of the assessment is aimed at showing parents, the Courts and the public that the process has been fair.

38.  The Benefits of the Tadpole Parenting Assessment

39.  We expect that care proceedings could take substantially less than the 40 weeks indicated in the Protocol.

40.  While the principal objective of this proposal is to protect vulnerable children from long delays by streamlining the assessment of parenting, it also improves the quality of the assessments and the evidence provided to Courts. It would improve the skills of the social workers involved. A nationally accepted form of assessment of parenting will enable Local Authorities more effectively to retain their statutory responsibility to protect children by contributing more fully to Court decision-making, rather than having it delegated to others.

41.  The standardised, objective measures of the assessment will make possible research to confirm its validity and predictive power, which will be a unique benefit. Until now all parenting assessments have been based on subjective opinion of the relevance of any tests or interviews undertaken and have not been amenable to such scrutiny.

42.  The assessment would reduce costs substantially. In 2008, the Courts received 12,520 care or supervision applications—some for families of as many as eight or nine children. A conservative estimate of an average saving of £10,000 from the overall costs of a case (including legal aid, Local Authority and Court costs) indicates savings of £125 million a year.

43.  Local Authorities would save all the costs of residential assessments and much of their share of the other costs of the current protracted process.

44.  A central expert panel would provide validation of the assessment, lead the process of setting up, directing, training and ensuring supervision and quality control. The costs of these central activities would be dwarfed by the savings made to the legal aid, Court and Local Authority budgets.

45.  The Steps Required to Move Forward

46.  The assessment needs to be piloted in order to confirm the savings in delay and costs that can be achieved, before it is extended nationally.

47.  However, Local Authorities, who would need to take the lead, are facing financial uncertainty and may not be able to commit to meeting the start up costs, even though they will save money in the long run.

48.  The costs of public law care proceedings are shared between the Ministry of Justice and the separate Local Authorities and this split responsibility is an obstacle to identifying the source of funding for the piloting phase.

49.  The start up costs of the piloting exercise could be met if the piloting Local Authorities were allowed to charge the other parties for their share of the cost of this specialist assessment. Although it would be a new activity for the Local Authority, they are traditionally precluded from charging for their work as they are the applicant. Allowing the Local Authorities to charge the other parties for their shares, specifically of this new assessment, would be the simplest way of enabling them to fund the piloting phase. Alternatively, there would need to be an initiative taken at a senior level to enable the start up funding to be released.

August 2010

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