Operation of the Family Courts - Justice Committee Contents


Written evidence from the Family Rights Group (FC 41)

THE OPERATION OF THE FAMILY COURTS

1.  ABOUT FAMILY RIGHTS GROUP

Family Rights Group advises and supports parents and wider family members who are involved with local authority children's services about the needs, care and protection of their children.

2.  CONTEXT

In the last two years there has been a significant rise in referrals to children's social care services, and an even greater increase in numbers of children subject to child protection plans. Care proceeding applications are at record levels, although there is some local variation across the country. There are currently long, expensive delays within the court process, children not being allocated guardians until late into proceedings, a shortage of foster carers and children facing insecurity whilst awaiting decisions about their futures.

Local authority social workers, managers and even legal teams are veering towards risk adversity rather than risk management. The financial climate is exacerbating the situation because many non-statutory services are being closed, making it much harder for families to access the support they need when problems first emerge. Many of the families we deal with are those who then reach crisis point and whose children become subject to compulsory state intervention through the child protection (or youth justice) systems.

The proposals we are putting forward seek to:

  • Support partnership working between families and the local authority, in order to ensure children who are at risk of harm are kept safe; and
  • Enable more children to remain safely living within the wider family network, if they are unable to live with their parents.

The impact of the proposals is primarily to improve outcomes for children, but also has the benefit of reducing avoidable care proceedings and thus addressing court delays (and the shortage of unrelated foster placements for children in c are). The proposals are cost effective—generating savings in the court system, the legal aid budget and local authority budgets. For example:

  • Every unnecessary care case avoided, saves more than £25,000[81] associated with the court process.
  • Even a reduction of 5% in the care population, could reduce expenditure on the care system in England and Wales by over £109 million per annum, which could be more effectively redirected to promoting children's welfare.

This submission sets out proposals which address questions (ii) and (iii) of this consultation. Although this inquiry is focussed on the working of the courts, we think it is extremely important to also consider what is happening to vulnerable children and families in the family justice system as a whole in order to ensure that effective interventions are available when they are most needed, which in turn will result in court proceedings being averted in some cases.

3.  A WAY FORWARD

A.  Pre-proceedings support for families that will assist partnership working

1.  The importance of independent advice and advocacy for parents and carers involved with children's social care services

It is well established that the engagement of families is key to keeping children safe when they are subject to child protection plans (DoH, Child Protection: Messages from Research 1995). This makes sense practically because 93% children who are subject to a child protection plan live at home[82] hence their families need to engage with and commit to implementing the plan if the child is to be safe. Whilst the Baby Peter case demonstrates that seeming co-operation isn't sufficient on its own for children's social care services to be confident that a child is protected, the absence of partnership working between the family and the social care agency is an important indicator of serious concern. A lack of parental cooperation is a key factor as to why cases end up in proceedings. So what works?

A recent independent evaluation of Family Rights Group's Advice Service[83] found that 88% of family members who had called the advice line felt it had helped them to cope with their situation and 70% reported that it had led to improved service provision by the local authority. 100% of grandparents felt that their chances of contact with a grandchild had improved following their call, with 90% feeling more confident in their dealings with social workers/professionals and 60% reporting that the advice they received had helped the family to stay together. Respondents reported that as a result of their call they had acquired more understanding of their situation (88%). This was linked to a reduction in abnormal psychological functioning, that research suggests is linked to improved parental functioning. Family Rights Group's advice line is funded by the Department for Education until April 2011. If further government funding is not made available the line will close and families will lose access to this unique service.

Independent advocacy for parents in child protection processes has been found to have a very positive impact, enabling the parent to hear the concerns , to engage in the child protection conference, and to focus upon the child's needs rather than be caught up in hostilities with the local authority. Research has found that what makes a difference is that the advocate has specialised knowledge of child care law and practice, is non-confrontational, works to a reporting threshold and is independent of the local authority (Lindley, 1999). However, there is no national provision of specialist advocacy for parents in local authority safeguarding processes. This needs to be addressed, on an invest to save basis, so that parents are assisted to participate, from an informed position, in finding safe solutions for their children when they are at risk.

2.    Letter before proceedings: as described in government guidance[84] the letter should be sent by local authorities to parents where care proceedings are being considered. It can be very helpful in setting out clearly to parents the local authority's concerns and what needs to change, in emphasising the seriousness of the situation, and in enabling the parent(s) and others with parental responsibility to get free independent advice (Level two public funding) from a solicitor and assistance with negotiations. However, in reality its use is patchy and it is often sent so late in the day that there is no time for parents/wider family members to make the changes necessary to overcome the concerns before care proceedings commence.

We would recommend that the guidance be revised so that local authorities are encouraged to send the letter at least three months before proceedings are likely to be initiated unless there is an emergency. This would maximise the opportunity for parents and wider family to address concerns and where necessary to identify alternative within family placements.

We would also suggest that LSC level 2 advice (triggered by the letter before proceedings) not just to parents and others with parental responsibility, but also to family members with significant involvement with the child, who are considering taking on the care of the child.

3.    Family Group Conferences (FGCs) FGCs originate from New Zealand and support families (included extended family members) to take the lead in planning to keep the child safe and promote his/her well-being. The plan is constructed by the family but must address the local authority's concerns[85]. FGCs are proven to:

  • Result in extended family members stepping in to support struggling parents and when necessary to take on the care of the child if s/he cannot remain with their parents;
  • Engage fathers and paternal relatives;
  • Give children a voice;
  • Improve outcomes for children at risk; and
  • Be cost effective in preventing children being unnecessarily subject to care proceedings or removed into care. For example, a recent sample of 4 local FGC projects reported that they have prevented 159 children becoming looked after in the last year, including avoidance of proceedings for 87 children, at a saving of approximately £6.76 million. The FGC project costs amounted to £968,000 in 2009-10 and whilst costs to public agencies of supporting the family plan also needs to be taken into account, nevertheless the savings are clear. Currently 69% of local authorities in England and 18 out of 22 authorities in Wales have or are setting up an FGC service, but it is still relatively ad hoc whether or not a family is offered one. We would recommend that local authorities be placed under a duty to offer an FGC to the child and their family before (or immediately afterwards in an emergency) care proceedings are commenced.

4.  FAMILY AND FRIENDS CARE:

  • (a)  To enable more children to safely live within their family, instead of going into care, there needs to be a coherent family and friends care framework, addressing assessment and support. Whilst the anticipated family and friends care guidance is welcome and may go some way towards improving the situation for some children, what is needed is a legislative lead including:
  • a new duty on local authorities to provide a support framework for all family and friends carers, including help with managing contact and support groups for such carers, irrespective of their legal status;
  • a right to assessment to support for children being raised in family and friends care arrangements;
  • a national financial allowance when there is judicial or professional evidence that the children cannot live with their parents; and
  • non means and non merits tested public funding to enable family and friends carers to apply for special guardianship or residence orders where children cannot return home.
  • (b)  To enable family and friends carers to obtain parental responsibility without necessarily having to bring a case to court, we propose that there should be a provision for parents (with parental responsibility) to enter into a parental responsibility agreement with a relative (as defined in S105 CA 1989), as has already been extended to step parents.
  • (c)  FRG/BAAF/Fostering Network have developed and are piloting an assessment tool specifically designed for assessing family and friends carers. The approach could be extended nationally.

B.  During proceedings:

5.    Split hearing with early threshold finding of fact. The removal of a child from its parents is one of the most draconian steps that the state can take. It is therefore essential that there is a rigorous judicial process to determine that a child is suffering or likely to suffer harm such as to warrant state intervention. When the local authority makes an application for a care order it is effectively claiming to have that evidence. However, rather than spending up to a year collecting further evidence to establish the threshold, we propose that the local authority should present this evidence as expeditiously as possible in an early threshold hearing so that this question can be "got out of the way". The parents may well seek a legitimate delay if they need to obtain expert evidence to challenge the local authority's evidence, but it should be exceptional for the local authority to need further evidence to establish the threshold.

The impact of an early finding of fact hearing would be that the parents and wider family would fully understand the context in which they need to consider the child's future care sooner rather than later. It would mean the adversarial part of the proceedings will be relatively short and it will be clear who may not care of the child in future. This should inform both the family and the local authority's planning for the disposal or welfare stage of the proceedings.

The court should have the power to direct the local authority to offer the family a Family Group Conference after the threshold criteria have been established.

6.    Judicial continuity has many advantages and is cost effective. It reduces the amount of preparation time needed by judges and legal representatives; the judge has a much better grasp of the case and its history; parents, children and family members and the local authority all feel more confident that the background history and any issues arising during the course of the proceedings has been taken into account in decision making; court hearings are shorter, and often less antagonistic, because the whole history of the case does not need to be gone through on eac h occasion. The advantages of judicial continuity in a Family Proceedings Court are in evidence in the Family Drug and Alcohol Court, currently being piloted in the Inner London Family Proceedings Court.

Judicial continuity has been recognised as particularly important for care proceedings for many years now, but has proved very difficult to achieve even in Care Centres and the High Court. We recommend further attempts to achieve this at these levels of court. It has been seen as impossible to achieve in the Family Proceedings Court because of the working arrangements set out for magistrates and District Judges, who sit for limited periods of time in the FPC, and, in the case of District Judges, are required to spend a greater proportion of their time dealing with criminal cases. We therefore suggest a review of the working conditions for magistrates and District Judges and consideration being given to the recruitment of specialist Family District Judges.

7.    Family mediation services could be used to assist parties to resolve more minor disputes between parties, such as contact, in public as well as private law proceedings. This would save on court time and would help to promote a more co-operative working relationship between families and the local authority and might help to reduce the parents' isolation during proceedings. To maximise this approach the court would need to have the power to direct parties to public law proceedings to attend an assessment meeting with a mediator, similar to contact activity directions in private law. Further, as with FGCs, all those involved in the family justice system should be trained as potential referrers to mediation so that referrals are appropriate and timely.

8.    Good legal representation helps parents in care proceedings to accept the reality of their situation including when need be facing up to what they need to do to explore alternative carers within the family rather than the child ending up in unrelated care. Parents and relatives' access to justice is likely to be seriously impaired by the dramatic reduction in the number of solicitors firms, including specialist firms, awarded contracts by the Legal Services Commission to do family work including care work which will be implemented in October 2010. It is often the case in care cases that the different parties such as the mother, father and grandparent need separate representation where there are conflicting interests (for example where domestic abuse is a factor). The effect of the significant reduction in solicitor firms with a LSC contract will be that in many localities it will be impossible for each of them, when relevant, to find a different legal firm to represent them in proceedings (and indeed to get advice when they receive a letter before proceedings from the local authority). The consequence will be that many parents and relatives will not be able to get the advice they need to understand the options open to them. We would recommend that the LSC contract process is reviewed urgently.

9.  ADDRESSING THE SUPPORT NEEDS OF LITIGANTS IN PERSON

The numbers of litigants in person is increasing and will continue to do so as a result of the imminent reduction in the number of solicitors firms authorised to do publicly funded work. This will place further pressure on the court system both in terms of admin staff and judges needing to spend longer guiding them through the stages of the court process.

Access to free specialist advice: It is therefore important that court staff are trained and prepared in helping litigants in person to:

  • access and complete the correct documentation, and access free specialist advice if they wish.

The Family Justice Council Parents and Relatives Sub-group is currently developing a leaflet setting out sources of specialist advice; indeed, some of these organisations (for example FRG) produce DIY information sheets specifically designed to help litigants in person in children's cases through the court process. The aim is that this will be widely distributed in all courts. However the current financial climate is such that these advice services delivered by the voluntary sector, including FRG's advice service, are vulnerable to closure if adequate funding is not made available.

McKenzie friends: Some litigants in persons wish to bring a supporter with them to court. Their intervention can be beneficial if the supporter understands the remit of their role and the importance of keeping focussed on the child's welfare as the paramount consideration. Conversely their intervention can be counter-productive if they give unrealistic expectations to the litigant.

There has been a recent practice direction of the role of McKenzie friend setting out the expectations of the court and what they may or may not do. However we are not aware of any leaflet or guide which makes this information easily accessible to potential McKenzie friends, this gap needs to be addressed.

10.  Whilst the Select Committee's review is focused upon dealing with the already over stretched family court system, we nevertheless wish to make a link between this review and the forthcoming Green Paper on Youth Justice in which the Government wishes to consider how different approaches could be used in respect of 10-15 year olds in the youth justice system. Until the Children Act 1989, children who committed offences could be dealt with under child care law instead of criminal law. The Children Act1989 split the two completely. The previous Government then removed the legal presumption that a child between 10 and 14 did not have the necessary understanding to commit an offence. As a result many more 10-15 year olds are caught up in Youth Justice System. A key factor in a large number of these children's offending behaviour is their home circumstances but the most that the Youth Court magistrates and judges can do about it is make a parenting order - they can't transfer the case over to the Family Proceedings Court to be treated as a care case. We would suggest that the option be considered of cases from the Youth Court being transferred into care proceedings if the offending behaviour is rooted in neglectful or abusive parenting. Whilst this may place further pressure on the family courts, nevertheless it doesn't mean it would not be the right thing to do.

September 2010



81   DfES/DCA/Welsh Assembly (2006) Review of the Child Care Proceedings System in England and Wales p13 Back

82   DCSF: Referrals, assessment and children and young people who are the subject of a child protection plan, England-Year ending 31 March 2009 Back

83   Ritchie C (forthcoming) Evaluation of Family Rights Group's Advice Service Back

84   Vol 1 Guidance: Children Act 1989 Regulations and Guidance, Volume 1 Court

Orders http://www.justice.gov.uk/guidance/careproceedings.htm Back

85   Further information about how they work can be found in a Protocol, endorsed by the Family Justice Council and CAFCASS, on the use of FGCs for children who are or may become subject to care proceedings-see http://www.frg.org.uk/pdfs/FINAL+FGCs+and+courts.pdf Back


 
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