Written evidence from Jill Canvin, Children
Panel Solicitor, Dr George Hibbert, Consultant Psychiatrist and
Clinical Lecturer, Oxford University (FC 07)
THE OPERATION OF THE FAMILY COURTS
EXECUTIVE SUMMARY
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.
RESPONSE TO
THE ISSUES
RAISED
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:
THE TADPOLE
PARENTING ASSESSMENT
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 graceusually
no more than three weeksfor 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 applicationssome
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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