Children and Families Bill

Supplementary evidence submitted by Nagalro (CF46)

CHILDREN & FAMILIES BILL 2013

Clause 13 - Control of Expert Evidence

Clause 13 Control of expert evidence, and of assessments, in children proceedings.

Proposed amendment

The negative tenor of this clause risks raising issues of cost above considerations of the welfare of children. Expert evidence can be essential to secure the welfare of children. Without it there will be more wrong decisions for children, more appeals and more delay leading, perversely, to higher costs . We propose paragraph 7 is amended to clarify that the welfare of the child remains the court’s paramount consideration when taking account of the other factors mentioned in this section.

At page 10, line 20 after regard insert ‘in particular to the child’s welfare as its paramount consideration and then’.

(7) When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to the child’s welfare as its paramount consideration and then to -

Rationale

Courts need expert evidence when they lack sufficient evidence from other sources on which to base a just decision, particularly when expert evidence will prevent delay and enable the court to meet the child’s timetable. The Family Justice Review said: "Expert evidence can often be necessary to a fair and complete court process ." [1] Nagalro supports the proposed test that any expert evidence must be "necessary to assist the court to resolve the proceedings justly" (s.13 (6)). Courts can ensure unnecessary instructions are not allowed through robust case management, focussed letters of instruction and tight timetables.

Clause 13 aims to reduce the use and cost of expert evidence, based on the belief, largely accepted by the Family Justice Review, that over-use of experts adds to costs and delay in court proceedings. Recent research findings suggest this belief is not supported by the evidence.

Cafcass Children’s Guardians, surveyed November 2011 [2] , reported that the biggest reason for delay, in two-thirds of cases with delay, was local authority practice and resources. Issues relating to experts affected 10% of cases with delay. The major factors were not about experts themselves, but related to blocks in the system e.g. delay in letters of instruction being sent, the lack of availability of suitable experts, and delay in the appointment of the Official Solicitor for parents who lack capacity. There was no delay in cases where there was robust case management by courts and ready availability of expert witnesses.

Research by Dr Brophy at Oxford University into the contribution that independent social work (ISW) expert reports make to family proceedings [3] found that ISW assessments provided new evidence about parents or others who had not been assessed by local authorities, and in cases where there was significant dispute about a local authority assessment. There was no evidence of routine duplication with a current local authority core assessment. There was no evidence that ISW reports cause delay to court hearings. ISWs filled gaps in the evidence needed by courts to make their decisions.

This clause will not address the significant delay that is caused by Legal Services Commission and its arbitrary decisions about funding expert reports. The LSC can thwart the court obtaining the expert evidence that it requires by imposing an arbitrary cap on the hours it will fund, leading to appeals and considerable further delays for children.

Clause 14 – Care, supervision and timetables

Clause 14 – Care, supervision and other family proceedings: time limits and timetables

Proposed amendment

We are concerned by the lack of flexibility in the time limit proposals, which will unhelpfully constrain courts. We share the desire to reduce delay for children, but we are also aware that children’s cases are very varied. In Nagalro’s view the courts require the discretion to set a timetable that accords with the welfare of each individual child. We propose the following amendment to clarify this point:

insert ‘and in accordance with the provisions of section 1 of the Children Act 1989. at page 12, line 35.

(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly and in accordance with the provisions of section 1 of the Children Act 1989.

Rationale

We are disappointed that the Bill has not taken account of the Justice Committee’s recommendation that there be greater flexibility over granting extensions to the 26 week limit for good child centred reasons. For example in one case a young girl, a very able student, was willing to give evidence and requested this took place after her GCSEs. In this case the time required would have gone beyond the 8 week extension.

The plan to limit time taken by care proceedings will only be effective for children if decisions are based on proper assessment and care planning. It assists when this work is done by local authorities before proceedings start. There is also substantial research evidence that many cases come to court lacking any assessment. Studies have found that about 40% of care proceedings cases come to court without an up-to-date core assessment. [1] , [2] Cafcass’ 2012 research also found that the local authority only provided all the information that it is required to supply to the court in 42% of cases. [3]

In emergency cases assessment only starts at the initiation of proceedings. In cases already known to local authorities there are two problems with work undertaken pre-proceedings. Firstly, parents’ legal representation is limited in that stage, placing parents at a disadvantage. The child lacks any independent representation at this stage. Secondly, the problem is compounded by the fact that without a court and a Children’s Guardian to monitor timetables, these steps are likely to take longer. This will prolong the child’s journey to a final decision.

Simply instituting a rigid 26 week time limit when it is clear that cases cannot be resolved satisfactorily within this timeframe at present will be a recipe for unjust and arbitrary decisions. If courts do not have sufficient time to obtain suitable evidence they will have to guess at what is the right decision for a child. Such a guillotine will be a violation of the child’s rights to fair justice, as well as their parents’

Clause 15 – Court scrutiny of care plans

 

Clause 15 Care Plans

Proposed amendment

This is arguably one of the most important clauses in the bill. It has the capacity to significantly change the nature of care proceedings. Rigorous testing of evidence in court when the state is intervening in family life has been a key principle of family justice. This clause will shift power for many crucial decisions back to local authorities.

Strong disquiet about the power of local authorities to end parental responsibilities and contact through entirely administrative processes was a key driver behind the creation of the Children Act 1989. There should be a formal, judicial process to consider the paramount interests of the child In relation to all key areas of the local authority’s plans. In this context implementation of Clause 15 will be a retrograde step.

After careful thought it is our view that this clause should be deleted in its entirety.

Rationale

Care plans are central to ensuring that state intervention in the life of vulnerable children is exercised in a purposeful way and is likely to ensure children’s needs, which are all too often complex, will be provided for in a coherent way.

A reduction in the scope of courts to consider the local authority care plan for a child will also serve to limit the Children’s Guardian’s ability to address these issues in their investigation as part of their tandem role with the solicitor to safeguard the welfare and best interests of the child.

Nagalro strongly believes that the best interests of the child will not be served by limiting judicial scrutiny of the care plan. The distinction between what is ‘core’ and what is ‘detail’ in a care plan is not easily defined, as the Family Justice Review report itself acknowledged. This needs to remain within the court’s discretion and Nagalro sees the House of Lords judgment in Re S; Re W as setting out what is still the correct approach:

"…when deciding to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future." [1]

The experience of our members is that decisions about whether siblings are placed together or separately, what therapeutic, health and educational provision they need, the particular type of placement, and the other matters indicated in the Family Justice Review [2] can be crucial issues for children’s welfare, and not capable of being neatly separated off from permanence options.

A significant weakening in a core safeguard for children

These matters cannot always be safely delegated to local authorities. It is already too easy for local authorities to make decisions about children for administrative or other reasons that are not child-centred.

There has already been a reduction in the amount of time and quality of work that Cafcass permits guardians to undertake and the Cafcass Operating Framework introduced on 1 April 2012 legitimises a restricted model of proportionate working which is at odds with the legislative framework. This is leading to a loss of quality in the ability of children’s guardians to scrutinise local authority care plans in court proceedings. Limiting the court’s ability to scrutinise care plans will constitute a further reduction in the ability of Children’s Guardians to safeguard children’s interests when decisions are being made about them that will radically affect their whole lives.

The provisions for the representation of children by children’s guardians are legislatively sound but as the Chief Executive of Cafcass said in his oral evidence to the Justice Select Committee on 17 July 2012, although cases may be nominally allocated, the time that guardians can spend on each case is limited and the quality of the Cafcass case analysis needs to be improved. [3]

It is very important that children have the opportunity, through their representatives, to interrogate the plans for their lives at a stage where they can still be changed. We would be alarmed if such a fundamental change in children’s rights was put in place as it would have the capacity to undermine the principles of the Children Act 1989 as well as the rights of children embodied in the UN Convention for the Rights of the Child and the European Human Rights Convention. We fear that this proposal will constitute a significant weakening of another core safeguard for children and that the provision is unrealistic in its lack of allowance for what may be poor or inadequate local authority practice.

There are also continuing concerns about the ineffectiveness of the Independent Reviewing Officer (IRO) service in holding local authorities to account. A reduction in the level of court scrutiny of care plans will place an additional burden of responsibility on the Independent Reviewing Officer service at a time when there are serious questions about its functioning and the conflicts of interest involved in the employment of IROs by the same local authority that has parental responsibility for the child. Many IROs carry unacceptably large caseloads - often in excess of 100. The problems were starkly illustrated by the case of A and S v Lancs CC [2012] EWHC 1689 (Fam) [4] . In this case the IRO had a caseload of over 200. 

It is very worrying that the National Association of Independent Reviewing Officers (NAIRO) had to write to the Minister for Children on 14 May 2012 to complain that a significant number of their members were being threatened and intimidated by local authority managers to prevent them from making challenges to care plans for children. In its recent Report the House of Lords Committee on Adoption Legislation [5] was sufficiently concerned about the lack of effectiveness with the IRO current service to recommend that it needs to be relocated outside local authority employment by implementing section 11 of CYPA 2008.

We are deeply concerned that such a change would be counterproductive and lead to poorer long-term outcomes for the children involved.


[1] para 3.120, Family Justice Review Final Report (November 2011), MoJ, DfE, Welsh Government

[2] Cafcass Care Application Study 2012 http://www.cafcass.gov.uk/publications/reports_and_strategies.aspx

[3] Brophy, J., Owen, C., Sidaway, J. and Johal, J., (2012) The Contribution of Experts in Care Proceedings: Evaluation of the work of independent social work assessments University of Oxford

[1] Masson J., Pearce and Bader K (2008) Care Profiling Study Ministry of Justice

[2] Jessiman P., Keogh P . and Brophy J . (2009) An early process evaluation of the public law outline in family courts Ministry of Justice

[3] As 2 above.

[1] http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020314/inres-1.htm.

[2] Family Justice Review, Interim Report, March 2011, Executive Summary para 78.

[3] O guardian, where art thou? Martha Cover, article in Seen & Heard, Vol 22 Issue 2

[4] http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html

[5] Published on 6 March 2013

Prepared 20th March 2013