House of Commons - Pre-legislative scrutiny of the Children and Families Bill

Pre-legislative scrutiny of the Children and Families Bill - Justice Committee Contents

3 Public law

19. Public law in the family justice context concerns the regulation of the activities of the state in intervening in family life to protect children, including the permanent removal of children from their families.

20. The principal purposes of the draft clauses on public law are to reduce the length of court proceedings and thereby reduce delays in making decisions for children. As Barnardo's told us in our Operation of the Family Courts inquiry, "Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored."[13]

Timetabling and delay

26 WEEK TIME LIMIT

4 Time limits in proceedings for care or supervision orders
(1)  Section 32 of the Children Act 1989 (disposal of application for care or supervision order) is amended as follows.

(2)  In subsection (1)(a) (timetable to dispose of application without delay) for
"application without delay; and" substitute "application—
(i)  without delay, and
(ii)  in any event within twenty-six weeks beginning with the day on which the application was issued; and..

(3)  After subsection (2) insert.

(3)  A court, when drawing up a timetable under subsection (1)(a), must in particular have regard to.
(a)  the impact which the timetable would have on the welfare of the child to whom the application relates; and
(b)  the impact which the timetable would have on the conduct of the proceedings.
(4)  A court, when revising a timetable drawn up under subsection (1)(a) or when making any decision which may give rise to a need to revise such a timetable (which does not include a decision under subsection (5)), must in particular have regard to.
(a)  the impact which any revision would have on the welfare of the child to whom the application relates; and
(b)  the impact which any revision would have on the duration and conduct of the proceedings.
(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.
(6)  When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely, but are to be seen as exceptional and as requiring specific justification.
(7)  Each separate extension under subsection (5) is to end no more than eight weeks after the later of.
(a)  (a) the end of the period being extended; and
(b)  (b) the end of the day on which the extension is granted.
(8)  The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or the opening words of subsection (7), for the purpose of varying the period for the time being specified in that provision.
(9)  Rules of court may provide that a court.
(a)  when deciding whether to exercise the power under subsection
(5), or
(b)  when deciding how to exercise that power,
must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules.."

(4)  In subsection (1) (court's duty, in the light of rules made by virtue of subsection (2), to draw up timetable and give directions to implement it).
(a)  for "hearing an application for an order under this Part. substitute "in which an application for an order under this Part is proceeding", and
(b)  for "rules made by virtue of subsection (2))" substitute "provision in rules of court that is of the kind mentioned in subsection (2)(a) or (b))".

(5)  ... (see paragraph 56 below)

21. The Norgrove Report identified delay in care and supervision cases as a significant problem, concluding that delay was endemic and built up at every stage with cases taking an average of 61 weeks in care centres and 48 weeks in Family Proceedings Courts to complete.[14] The Explanatory Notes to the draft clause state that it puts in place a "maximum 26 week time limit for the completion of care and supervision proceedings" with the aim of reducing unnecessary delay and ensuring cases are progressed swiftly and are more actively managed. In our previous Report we welcomed the idea of a time limit, but questioned its feasibility.[15] As the Family Law Bar Association noted in its evidence to us, the effect of the clause would be to make public family law the only area of law with a statutory time limit for the conclusion of a case.[16]

22. The 26 week limit can be extended, and the draft clause sets out tests for extension for periods of no more than eight weeks at a time.[17]

23. The Impact Assessment states that the Government considered an option which did not require regulation by:

[...] using the publication of data on care case duration to encourage courts in partnership with other relevant agencies to seek to reduce care duration, we have dismissed this alternative for a number of reasons:

The data published on care duration refers to case averages and do not provide a clear framework within which cases should be delivered.
Adding an expected time limit into legislation would send a clear and unambiguous signal to all parts of the system that long case duration is unacceptable. Changes to court rules, guidance and other initiatives have not succeeded in reducing the delays, nor prevented them from increasing. Setting a clear goal of this kind will provide the focus that is needed.[18]

Recent data

24. Data compiled in the years shortly after the introduction of the Children Act 1989 show a rapid rise in the average case completion time.[19] Between publication of the Family Justice Review's Interim Report[20] in March 2011 and the final publication of the Norgrove Report in November 2011, the length of cases in care centres had increased by four weeks and in Family Proceedings Courts by two weeks on the figures for 2010 that the Interim Report had cited.[21]

25. By September 2012, the average duration of care cases had reduced, and by our second evidence session, Cafcass was able to provide us with an update that in the second quarter of 2012 the average duration was 46 to 47 weeks,[22] although we note its further evidence that these figures conceal a spread from "30 weeks in the quickest courts to 64 in other parts of the country".[23]

The role of local authorities

26. Considerable efforts are already being made to reduce the length of care proceedings, in advance of the introduction of the proposed statutory time limit. We heard from Cafcass, Hampshire County Council and the Tri-borough Care Proceedings Pilot[24] in London about the work they are doing to implement a 26 week limit.

27. The Tri-borough Pilot boroughs (Hammersmith and Fulham, Kensington and Chelsea, and Westminster) are working together with the judiciary, the court services, Cafcass and other key stakeholders, in a pilot project which aims to minimise unnecessary delay. It commenced on 1 April 2012 and will last for 12 months, during which time it is estimated up to 100 cases will be heard. The Tri-borough Pilot was just over half-way complete when we heard evidence from them. They told us that in the first 10 cases that had completed, the average duration was 18 weeks. They had also made predictions about cases that might take longer; they considered that for the first 28 cases the average duration would be 24 weeks.[25] Overall, they considered that:

[...] 25% to 30% will take longer, just by virtue of the problems within the family and the length of time for domestic violence treatment programmes, as well as the length of time for rehabilitation programmes for drug and alcohol problems.[26]

28. In Hampshire there has been an increased emphasis on pre-proceedings work and, in particular, targeted social worker training. They explained their process to us:

[...] In order to achieve improvement the first stage is to carry out rigorous self audit of assessments. When we did this in 2009, we found that our assessments were too often lists of problems with insufficient analysis and an inability to describe, understand and make sense of the complexity of children's lives. In turn this could lead to service led interventions (i.e. what was available rather than what was required) and short-term objectives in plans rather than creating sustainable change in families. There were also other issues such as poor writing skills and presentation and a lack of confidence in giving evidence in court. In response we developed a quality improvement plan which was embedded through team and service plans as well as individual appraisals. This was backed up with a mandatory training programme on the use of analysis and chronologies in recording. However, social workers fed back that there was no clear expectation of what a 'good' assessment looked like. Therefore we ran a series of workshops in teams in which they and their managers shared good practice and peer reviewed their assessments in order to generate a clear consensus on what 'good' looked like.[27]

29. In addition, Hampshire had looked to improve "managerial grip" to provide an important safety net for social workers, and to provide organisational stability in social work and legal teams, as they told us:

At the point of our Ofsted inspection in 2011 Hampshire had no vacancies for social workers. Our turnover rate is low meaning that in a typical team of 7 or 8 they are likely to see only one social worker leave every 2 years adding to stability and learning.

This applies also to legal teams within local authorities where it is important that good and consistent working relationships are established between social workers and lawyers. [...][28]

30. We were impressed by the work being undertaken in Hampshire and at the Tri-borough Pilot, and asked whether it could be replicated. Hampshire told us that elements of their work, such as rigorous self-assessment of the needs of social workers, and working to improve the performance and confidence of social workers, could be replicated.[29] The Tri-borough Pilot has received funding from Capital Ambition and is in the early stages of working with 20 London Boroughs, by setting up stakeholder groups and sharing the materials they have developed over the last nine months.[30] We are aware from evidence received from other witnesses that similar projects have started in various local authorities across the country which we welcome.[31] We will watch the progress of the Local Family Justice Boards in their role developing and disseminating good practice with interest.[32]

31. The Family Rights Group and Kinship Care Alliance were concerned that the new speed of proceedings might create problems in that members of the wider family and friends could be prevented from applying to care for the child, sometimes because they have refrained from stepping forward to help because there is still a chance that the parent (who is often their child or sibling) may be able to look after the child in the long term, or because, in some cases, they are unaware of the depth or totality of concerns until much later. We put these concerns to our witnesses. The Tri-borough Pilot told us:

[...] we have had the benefit of a direction early from the court for all relatives who might be potential carers for the child to come forward, so we have had the authority from the court in asking for that. At the same time, we have done extensive work to look for relatives. In the first 10 cases, four of those children have gone either through special guardianship orders or adoption, or just gone home—gone back to a grandmother or to relatives. Most of them have had some kind of connected person or relative assessment. We are doing the assessments in a shorter time. We are completing them in 10 weeks rather than the 16 weeks that was the standard time before. Actually, relatives are welcoming that. They said that it took too long before, so they are quite happy with that. We have no evidence at all that relatives are being squeezed in any way.[33]

32. Mr Timpson told us that the Government was working with the Family Rights Group, and providing funding to them to develop and improve the use of family group conferences.[34] His view was that "the more work that is done early, the more the likelihood is that all the potential options for a child's future can be explored thoroughly before the case gets to court."[35]

33. We have received a range of responses as to the likely number of cases that will fall outside the 26 week time limit, from the 25 to 30% suggested by the Tri-borough Pilot[36], to the Association of Lawyers for Children's evidence that "only about 30% of cases nationwide are capable at the moment of being decided within 26 weeks".[37] Cafcass told us that "the last time care cases took 26 weeks on average was 1995. [...] it has taken 17 years to get up to 56, and it will take a little while to get back down".[38]

34. All our witnesses agreed that accurate, comprehensive and detailed pre-proceedings work was vital to reducing delay within the care proceedings process; we agree. As part of this Inquiry we have not given detailed consideration to social work training, but we commend the work of the Tri-borough Pilot and Hampshire County Council in assessing, training and managing their social work teams to reduce delays. We recommend that their models of social work and social worker training are disseminated to all local authorities as examples of effective good practice.

35. At local authority level we consider that a 26 week time limit is beneficial and feasible in the majority of cases. In terms of the concerns raised by the Kinship Care Alliance, we consider that this forms part of the wider discussion of the need for high quality and comprehensive pre-proceedings work by local authorities. Where such work is performed competently and efficiently, we do not think that wider family members or family friends will be excluded from the process. However, this is an area where we recommend that the Government reviews the practical effect of the clause over its initial period of operation to ensure that kinship carers are not excluded from the Local Authority or Court decision-making.

In the Courts

36. Mr Justice Ryder[39] updated us on the progress of implementing the proposals in his report Judicial proposals for the modernisation of family justice which are independent of the Government's recommendations, but which, nonetheless, take account of the likely and proposed changes to the family justice system:

We have a draft blueprint presented to the Family Business Authority—that is the sub-committee of the HMCTS main board—for how the new court is to be set up. We have a pilot for management information. That is the care monitoring system. We have a training plan, [...]. The Rules Committee has a one-year programme, which will begin at its next meeting and take us right through 2013, looking at 16 statutory instruments and other rule-and-practice direction changes.

The family court guide now has draft expectation documents—service level agreements, for want of another description—in relation to experts. We have materials in relation to social care from Cafcass and the ADCS.[40] We are talking to the LSC about a similar document, and to the Official Solicitor later this month. We have a sub-group of lawyers looking at their documentation, and the quality and content of that.

The first part of the research has been published for use in court, and skills training—that is the pathways—will be in draft by December.[41]

37. He described the new intensive training that judges will be undertaking, firstly on work load prioritisation, progress through the courts, use of management information and proactive working within a new family court, and secondly, and more widely, skills training. He will also be working with professionals within the system in training and distribution of materials.[42] We welcome and commend the extensive work to enhance judicial training that is being undertaken.

38. We also heard from practitioners about the likely operation of a 26 week limit within the Courts. The Family Law Bar Association raised a practical problem about timetabling and extension periods:

Another problem with 26 weeks and then coming back for eight-week slots is that one can't timetable a case to a final hearing beyond 26 weeks. If you discover two or three months into the process that it is not possible to conclude it within 26 weeks, unless you can timetable it beyond that stage, you will lose your slot in the queue and build in further delay. Likewise, if you have to come back every eight weeks for an extension, there are further hearings, because the judge is going to have to sanction a further eight weeks, and then maybe another eight weeks. You will be increasing the judicial process and the burden on judges.

Another problem is whether you can ensure judicial continuity so that the same judge case manages the case; otherwise, in a difficult case, there is an awful lot of reading to do. Judges have limited time, and the risk is that wrong decisions will be made because you are not able to get in front of the judge who has managed the case so far. If there are deadlines like this, we are going to need to have a hearing to permit the time limit to be extended, and you may have a judge who doesn't know anything about the case. Although we all agree as family lawyers that delay is inimical to child welfare unless it is purposeful, one must not ignore those cases that make it purposeful to have delay, and, in the long run, it is necessary to do justice.[43]

39. The NSPCC agreed that there was a need to be able to plan for the sorts of family interventions which have been proven to be successful[44], and to know that time for the intervention is available, rather than working to a strict timetable with the need for continuous extension applications.[45] We also recognise, however, that in some care cases the parents may feel that, if the child is away from the family for an extended period of time, this might change the circumstances facing the Court in making a decision as to whether the child should return home.

40. The Norgrove Report recommended the introduction of a legislative time limit for the completion of care and supervision proceedings within six months. As to the extension period, at paragraph 3.71 more detailed proposals were set out with the caveat that "Detailed thought and preparation will be needed but here is a starting set of proposals". The extension period of two months is set out in that list.

41. We asked Ministers about the need for flexibility. Mr Timpson told us that:

Tight case management is going to be absolutely key. We know, where there is tight case management, then decisions can be made earlier in the process of a case going through court. What I wouldn't want to do is to place on judges who have to decide the case themselves certain points where they have to make decisions about whether the case can be resolved justly within the 26-week time limit. It would seem to me that the case management conference would be a good point to make that sort of decision, but, also, there is no reason why it should involve additional hearings over and above the ones that would normally take place during the passage of a case through the court. Ultimately, it should be the judge making, through strong and robust case management, the decision at the right time that is commensurate with the best interests of the child.[46]

42. The flexibility described by Mr Timpson is included within the Impact Assessment,[47] but is not replicated in the draft clause's suggested insertion into section 32 of the Children Act 1989 of proposed subsection 32(7):

(7) Each separate extension under subsection (5) is to end no more than eight weeks after the later of -
(a) the end of the period being extended; and
(b) the end of the day on which the extension is granted.

43. We agree with the Family Law Bar Association that this is a practical problem, that will simply build further delay into the system as cases that are clearly likely to take longer than 26 weeks are repeatedly referred back to the Court in order for extensions to be granted. We also agree with the NSPCC that where intervention projects have been proved to be effective, such as the Family Drug and Alcohol Court[48] in London, they must be allowed time to work with children and families, without needing to apply for extensions mid-programme. This should apply equally to cases where it is clear that the behaviour of the parent or parents has changed or will change to allow the child to remain with its parents.

44. We recommend that the draft clause is amended to increase flexibility and allow judges to identify cases that are likely to take longer than 26 weeks at case management hearings throughout the proceedings, and to take such cases out of the 26 week timetable and/or to allow directions to be given beyond 26 weeks, rather than requiring constant re-listing and fruitless, taxpayer-funded, extension hearings. We consider that allowing limited flexibility for the disposal of applications for care or supervision orders, but greater flexibility in making interim care and supervision orders (as discussed below at paragraph 56) has the potential to create a disjointed judicial case management process.

Drafting revisions

45. The Norgrove Report suggested that the power to set a time limit should be introduced in primary legislation, but that secondary legislation and guidance should set out the actual time limit and the detail of how it is to work in practice. The Government accepted this recommendation in The Government Response to the Family Justice Review: A system with children and families at its heart.[49] It is not clear why the Government has chosen to use primary legislation to set the actual limit and determine its operation.

46. In addition, the draft clause's suggested insertion into section 32 of the Children Act 1989 of proposed subsection 32(8), would give the Lord Chancellor the power to vary the time limit and extensions. This is opposed by some of our witnesses:[50]

(8) The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or the opening words of subsection (7), for the purpose of varying the period for the time being specified in that provision.

47. We asked Mr Timpson to explain the need for this clause, and suggested that regulations made under subsection 32(8) should be subject to the affirmative resolution procedure in Parliament.[51] He told us:

The current draft clause has, on the face of it, a 26-week limit. The purpose of that is to make it absolutely clear about the intention of the draft legislation and the message that we want to send about reducing delay. I know you have heard evidence from others about how that has been effective in some of the trial areas, particularly the tri-borough area, where they managed in 28 cases to reduce it down to round about 24 weeks on average per case. There may be cause to suggest that that 26 weeks in the future could be varied, and we want the option of being able to do so. Of course I am happy to hear the Committee's views about the validity of having 26 weeks within the primary legislation as opposed to elsewhere in any other further legislation that comes forward.[52]

48. We welcome the further clarification from the Ministry of Justice and Department for Education[53] that the affirmative procedure would be used.

49. In addition, the clause contains two tests to extend the time limit - "necessary to enable the court to resolve the proceedings justly" and "exceptional and as requiring specific justification":

(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.

(6) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely, but are to be seen as exceptional and as requiring specific justification.

50. As a further consideration, rules of court may provide further guidance:

(9) Rules of court may provide that a court
(a) when deciding whether to exercise the power under subsection (5), or
(b) when deciding how to exercise that power,
must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules.

51. This leaves a litigant, local authority employee, judge or legal representative in the position of potentially having to look through three different pieces of legislation or guidance, as well as applying two tests, all to work out the simple question of how long a case may last. We recommend that the Government redrafts clause 4 to follow the Norgrove Report recommendation that "The power to set a time limit should be introduced in primary legislation. Secondary legislation and guidance should specify the actual time limit and provide the operational detail." Given the importance of the timetable and the need for parties to be aware of and contribute to any decision to vary the limit, we further welcome the confirmation from the Government that the affirmative resolution procedure would apply to the secondary legislation varying the time limit.

52. Finally, the use of the word "exceptional" to describe cases where extensions should be granted has been described by some of our witnesses as an inappropriate word to describe cases involving individual children who may be removed from their families.[54] Consideration should be given to changing the word exceptional to a more neutral term or removing it so that the clause reads "[...] extensions are not to be granted routinely, and require specific justification".

Cafcass

53. In our Report on the Operation of the Family Courts we made a number of criticisms of the way in which Cafcass was functioning. It is not the purpose of this Report to scrutinise the role and working of Cafcass in the family justice system, but it is appropriate to record that they have provided answers to some of our criticisms. They told us that they:

[...] have had no unallocated cases for some considerable time, despite the rise in the numbers of care applications, which is about 8% this year. We have increased productivity by roughly 10% a year, reduced sickness levels and improved quality, in the judgment of our inspectorate, Ofsted. We believe we have responded well to the concerns. We are still very stretched—on some days, overstretched. We have some concerns that the numbers of care applications look projected to rise further still, and about private law cases possibly increasing in future, although it is harder to judge the impact of the reforms on those levels of demand on us. In that period, we hope to become more confident and more resilient. I am not saying that it is easy, but we believe that we have responded in full to the concerns that you had.

54. We asked whether they thought they had the resources to cope with an increasing workload. They stated that they have had to change working practices, but that:

At the moment, we are keeping pace. The stock of cases in the system is roughly the same. In other words, by becoming more productive, we are closing as many cases—they are finishing in court—as we are opening new applications. I do not know whether that can continue for ever.

55. The primary responsibility for parliamentary monitoring of Cafcass as an organisation rests with the Education Committee, but we will continue to take a close interest in its impact in the Court system.

INTERIM CARE AND SUPERVISION ORDERS

4 Time limits in proceedings for care or supervision orders (excerpt)
(5)  In section 38 of the Children Act 1989 (interim care and supervision orders).
(a)   in subsection (4) (duration of interim order) omit.
(i)  paragraph (a) (order may not last longer than 8 weeks), and
(ii)  paragraph (b) (subsequent order generally may not last longer than 4 weeks),
(b)  in that subsection after paragraph (d) insert.
"(da) in a case which falls within subsection (1)(b) and in which—
(i)  no direction has been given under section 37(4), and
(ii)  no application for a care order or supervision
order has been made with respect to the child,
the expiry of the period of eight weeks beginning with the date on which the order is made;", and

(c)  omit subsection (5) (interpretation of subsection (4)(b)).

56. As the Explanatory Notes set out,[55] an interim care order (ICO) places a child in the care of the local authority on an interim basis until the court can make a final decision. An interim supervision order (ISO) places the local authority under a duty to advise, assist and befriend the child named in the order and to take such steps as are reasonable to give effect to the order on an interim basis.

57. The Norgrove Report recommended that the requirement to renew Interim Care and Supervision Orders after eight weeks and then every four weeks should be amended, with judges allowed discretion to grant interim orders for the time they see fit subject to a maximum of six months and not beyond the time limit of the case. The practical effect of draft clause 4(5) is as recommended by the Norgrove Report.

58. Evidence from the Solicitors in Local Government Child Care Lawyers Group was supportive of the changes:

A lot of administrative time is wasted both in local authorities and the courts with the present system of renewal which is of no benefit to the child in any event. The court will still have to safeguard the position of the child when considering the renewal of interim orders and the proposed renewal process should be easier to administer.

59. The Association of HM District Judges agreed:

We agree that the requirement to renew interim care orders after eight weeks and then after every four weeks should be removed. The present system entails unnecessary and time-consuming paperwork. The parents always have the right to apply to discharge an order if circumstances change.

60. The Kinship Care Alliance, however, highlighted possible negative consequences of the change in terms of preventing children from being raised within their wider family or circle of family friends:

We are concerned that this proposal removes a key opportunity for wider family members to apply to take on the interim care of a child pending a final hearing. This will be very significant when the new legal aid restrictions are in force as it will become more difficult for them to make a free standing application for an interim residence/child arrangements order without a lawyer than it would be to intervene in an existing interim hearing where the other parties solicitors could assist.

We accept the point made by the Office of the Children's Commissioner that this good practice for pre-proceedings work needs to be more consistent.[56]

61. We conclude that this is a useful legislative change, which allows flexibility for judges in effectively and proportionately managing cases. As to the concerns that the clause may make it more difficult to involve the wider family and friends of the family, we consider that improvements to pre-proceedings work should enable kinship carers to be involved at an early stage in the care process.

EXPERTS

3 Control of expert evidence, and of assessments, in children proceedings
(1)  A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.
(2)  Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.
(3)  A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings.
(4)  Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible.
(5)  In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.
(6)  The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.
(7)  When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to.
(a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,
(b) the issues to which the expert evidence would relate,
(c) the questions which the court would require the expert to answer,
(d) what other expert evidence is available (whether obtained before or after the start of proceedings),
(e) whether evidence could be given by another person on the matters on which the expert would give evidence,
(f) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings,
(g) the cost of the expert evidence, and
(h) any matters prescribed by Family Procedure Rules.
(8)  References in this section to providing expert evidence, or to putting expert evidence before a court, do not include references to.
(a) the provision or giving of evidence.
(i) by a person who is a member of the staff of a local authority or of an authorised applicant,
(ii) in proceedings to which the authority or authorised applicant is a party, and
(iii) in the course of the person.s work for the authority or authorised applicant,
(b) the provision or giving of evidence.
(i) about the matters mentioned in subsection (1) of section 94 of the Adoption and Children Act 2002 (suitability for adoption etc.), and
(ii) by a person within a description prescribed for the purposes of that subsection,
(c) the provision or giving of evidence by an officer of the Children and Family Court Advisory and Support Service in that capacity, or
(d) the provision or giving of evidence by a Welsh family proceedings officer (as defined by section 35(4) of the Children Act 2004) in that capacity.
(9)  In this section.
"authorised applicant" means.
(a) the National Society for the Prevention of Cruelty to Children,
  or
(b) a person authorised by an order under section 31 of the Children Act 1989 to bring proceedings under that section;
"child" means a person under the age of 18;
"children proceedings" has such meaning as may be prescribed by Family Procedure Rules;
"the court", in relation to any children proceedings, means the court in which the proceedings are taking place;
"local authority" -
(a) in relation to England means.
(i) a county council,
(ii) a district council for an area for which there is no county council,
(iii) a London borough council,
(iv) the Common Council of the City of London, or
(v) the Council of the Isles of Scilly, and
(b) in relation to Wales means a county council or a county borough council.

(10)  The preceding provisions of this section are without prejudice to sections 75 and 76 of the Courts Act 2003 (power to make Family Procedure Rules).
(11)  In section 38 of the Children Act 1989 (court's power to make interim care and supervision orders, and to give directions as to medical examination etc. of children) after subsection (7) insert.
"(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.
(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to.
(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,
(b) the issues with which the examination or other assessment would assist the court,
(c) the questions which the examination or other assessment would enable the court to answer,
(d) the evidence otherwise available,
(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,
(f) the cost of the examination or other assessment, and
(g) any matters prescribed by Family Procedure Rules."

62. The aim of draft clause 3 is to ensure that the Court has before it the evidence it needs to have to make a decision at the earliest possible opportunity and to avoid duplication of evidence.

63. The draft clause sets out the test for seeking the Court's permission to "instruct a person to provide expert evidence for use in children proceedings" or for a child to be "medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings". The current test for permission as set out in Part 25.1 Family Procedure Rules is that the "Expert evidence will be restricted to that which is reasonably required to resolve the proceedings". The draft clause changes the test to one where the court may give permission, "only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly." Draft clause 3(7) sets out the matters over which the Court is to have particular regard. It is not clear to us why the permission test for experts is "necessary to assist the court to resolve the proceedings justly" whereas the test for the 26 week limit extensions is "necessary to enable the court [...]" [our emphasis]. We recommend that the Government explains the need for different wording, or chooses only one word for consistency.

64. The intention of the clause appears to be to reduce the number of expert reports permitted in "children proceedings", particularly in public law care proceedings. "Children proceedings" are defined as having "such meaning as may be prescribed by Family Procedure Rules".[57] The draft clause applies to public and private law cases, and indeed it is appropriate and sensible for a single permission test for expert evidence to apply to all cases involving children. The Impact Assessment states that the Government has "[... assumed that the changes will not affect how experts are used in private law cases involving children."[58] We recommend that the Government clarifies whether the definition of "children proceedings" will be the same as current Family Procedure Rules Part 12, or whether a new definition will be recommended for insertion into Part 12 or another Part.

65. In our inquiry into the Operation of the Family Courts we heard evidence about the extent to which expert witnesses contributed to delays within the Family Court system and concluded that there were unnecessary expert reports in some family cases; a lack of clear case management from judges was leading in some cases to far too many expert reports.[59] The Norgrove Report agreed with us and recommended that "primary legislation should reinforce that in commissioning an expert's report regard must be had to the impact of delay on the welfare of the child. It should assert that expert testimony should be commissioned only where necessary to resolve the case."[60]

66. Mrs Justice Pauffley[61] explained her position on the Court's increasing reliance on expert reports:

In some instances, it is completely unnecessary, I would say, to involve an expert. Thirty years ago, experts to carry out good social work assessments were not common; they were a rarity. Somehow over the past 30 years, society I suspect has become more risk averse. That has had an impact on practitioners and judges as well. Whereas hitherto a social worker would have been able to carry out a perfectly good and full parenting assessment, now, for whatever reason, we are confronted with social workers and guardians saying, "We have to have a psychologist here." Very often the answer is, "No, you don't in truth." The real need is for a good social work assessment, which the local authorities should be able to provide. There is a guardian as well—a qualified social worker usually with very long experience. He or she is able to carry out the fundamentals of assessment. If we use those tools and possibilities, we can short-circuit the time frame for care cases very markedly.[62]

67. Evidence from the Tri-borough Pilot confirmed that the number of expert reports could be reduced, where social workers' reports were of a high quality:

[...] in the first 10 cases we have used experts in only a small number. In three of them we did not have any additional experts at all. In a further two or three others, we had connected persons' assessments of relatives, but not additional experts. That is because of the energy and not just the quality assurance role of the case manager, but a coaching role. She works with the social worker who is presenting the evidence right from the beginning and will help that social worker be confident about the local authority evidence, so that there is less need to ask for additional assessments. That has been borne out in the court, because the judges and magistrates hearing those cases have not then agreed to additional assessments where they have been requested because of the quality of the evidence from the local authority.[63]

68. Representatives of expert witnesses, however, pointed to the highly specialist work of experts[64] for which social workers are not trained, or where the role of an Independent Social Worker can add real value. They were concerned that judges appeared to be applying the proposed test already, and that important expert reports were being refused. For example, the Consortium of Expert Witnesses to the Family Courts told us:

Our anecdotal evidence is that anything up to 70% of requests for expert assessments in care proceedings have been refused because, even before the legislation came into effect, judges have begun applying the new test. This leaves the question of who is assessing risk. Who is assessing damage to the children? We don't know, but I know that it is not us clinicians, even though we are the people who have the expertise to address these questions.

Three weeks in November, the Cafcass report [...], showed that 51% of parents in care proceedings have mental ill health, and approximately 60% have drug and alcohol abuse problems and/or are victims of domestic violence. [...]

Assessing these problems is not work that a social worker can do. No matter how well trained they are, they are not trained to be mental health assessors and they are not trained to be paediatricians. [...][65]

69. Research by Dr Julia Brophy[66] was raised by a number of our witnesses. Her conclusion from a review of 65 cases, concerning 121 children, and 85 expert reports, was that Independent Social Workers did not simply duplicate social workers' efforts. The families instructing Independent Social Workers were those with multiple problems, including drug and alcohol abuse. The majority of the children in their reports were the subject of allegations concerning more than one form of ill-treatment, and most were under 6 years of age. Almost all the children were the subject of interim care orders. She also found that parents were not solely responsible for the use of Independent Social Worker assessments - local authorities were a party to the instruction of the expert in 65% of cases. She considered that there were very few late reports where lateness was not case-driven.

70. Taking the evidence together, it appears that where social workers have received training and pre-proceedings work is of high quality, the number of expert reports required will most likely reduce, either because the need for extra assessments because current reports are out of date or because kinship carers have not been identified, will arise on fewer occasions as a result of better practices, or because there will be cases, as identified by Mrs Justice Pauffley, where improved reporting and presentation skills of social workers will convince judges that their evidence can be relied upon without the need for it to be "double-checked".

71. There will be cases, however, where it is necessary for an expert to be instructed, for example, to provide specialist skills or tests, or where the relationship between the local authority and the family has broken down to such an extent that an independent report is needed, or where events occur within the timescale of the proceedings for which an independent report is the most appropriate and quickest course for the Court to take.

72. It is difficult to see how these exceptions would not pass the new test; equally they rely upon the work of the local authority being of a high quality, and that will take time to achieve across the country. We therefore conclude that the draft clause on experts is a proportionate response, but that its effective operation in practice will be dependent on improvements in social worker training, assessment skills, reporting and presentation. We are concerned by anecdotal reports that judges are already applying the test in the draft clause in deciding applications for permission to rely upon expert evidence, and that the test is being applied too strictly. We recommend that the Ministry of Justice monitors whether the number of successful appeals against case management decisions refusing expert evidence increases in order to assess whether the test is being applied too strictly. If successful appeals increase, as is mentioned as a possibility in the Impact Assessment,[67] this will cause further delay within the care proceedings system. This should be avoided.

Drafting revisions

73. We make the following recommendations for further smaller revisions to draft clause 3:

a. 3(2) and (5) - the two sub-clauses appear to be the same. We recommend that (5) is deleted;

b. (9) - whilst helpful within Explanatory Notes a number of definitions are already defined elsewhere within the Children Act 1989 and should not be repeated here. In addition, it is not clear why "authorised applicant" has been used rather than "authorised person" as in s.31 Children Act 1989; if there is a difference it should be explained in the Explanatory Notes.[68]

Legal Services Commission funding

74. A number of witnesses raised with us problems in the funding of experts by the Legal Services Commission (LSC), and suggested that this will prevent the effective operation of the 26 week limit. This is not a new topic for us, as we considered similar problems in our Operation of the Family Courts report.[69]

75. The LSC is responsible for contracting with legal aid providers, and for paying them. It is also responsible for approving and paying their disbursements, which include the costs of expert witnesses. Our witnesses told us that the current practice of the LSC was causing delay within publicly funded proceedings. The current complaints break down into a number of areas, including[70]:

a. The LSC sets hourly rates, and has latterly started to object to the number of hours needed to complete an assessment, with no clear basis for objections;

b. The LSE is restricting the number of expert reports;

c. On 1 October 2012 the LSC ended its procedure of granting prior authority for the costs of instructing particular experts in specific cases, leaving a risk of non-payment or reduced reimbursement for the solicitor who has contracted with and is responsible for the expert's fees.

76. We were also sent a copy of a recent judgment of the President of the Family Division, Lord Justice Wall, where he was asked to provide guidance on the question of prior authority addressed to the LSC in relation to expert evidence.[71]

77. We asked the LSC to comment on the complaints we had received, and then sought further data from them to substantiate their statements. In our opinion the evidence provided by the LSC does not fully answer the complaints (which is not to say that the LSC are unable to answer these complaints). For example, the LSC states in relation to the complaint on objections to the number of hours claimed that, "Since the introduction of codified rates in October 2011 we have observed a general increase in the number of hours requested. This has been confirmed anecdotally by representative bodies". We put this to our witnesses from two bodies who represent experts, and they disagreed[72] and suggested that for some experts the number of hours per assessment had reduced.[73] When asked to provide figures for this assertion, the LSC told us that their answer was based on increased requests for prior authority, which is quite different to an "increase in the number of hours requested":

The LSC does not currently collect detailed information on requests for different types of experts and their costs. The LSC does not have a benchmark of hours for pre-codified rates and our observation of the increase in hours requested is based on processing the large number of prior authority applications that we receive each month.

We share the concern of our witnesses that statements of the type made by the LSC about trends in the number of hours requested to undertake expert assessments when based on anecdotal information, are unhelpful unless supported by robust evidence, as they can come to be repeated as fact.[74]

78. Lord McNally told us that problems within the LSC were being addressed "with a sense of urgency".[75] Given that a variety of witnesses raised these complaints with us, and that if correct, they will have a deleterious effect on the success of the 26 week time limit, we recommend that the Government urgently reviews the system of payments by the LSC to experts. We further request that firstly, the Ministry of Justice provides us with a detailed response to the criticisms raised by our witnesses, and confirm that Wall LJ's guidance is being followed by the LSC, and secondly, that they provide us with a further update on progress made to meet the criticisms by the end of April 2013. We have not sought to assess whether the level of fees paid to experts is appropriate, and without more detailed examination we draw no conclusions on the level of expert remuneration.

Judicial scrutiny of care plans

5 Care plans
(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute.

"(3A) A court deciding whether to make a care order -
(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but
(b) is not required to consider the remainder of the section 31A plan.

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following -
(a) the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;
(b) adoption;
(c) long-term care not within paragraph (a) or (b).

(3C) The Secretary of State may by regulations amend this section for the purpose of altering what for the purposes of subsection (3A) are the permanence provisions of a section 31A plan."

(2) In section 31A of the Children Act 1989 (care plans).

(a) in subsection (1) (where application made for care order, care plan to be prepared within such time as the court may direct) for "the court may direct" substitute "may be prescribed", and
(b) after subsection (4) insert -
"(4A) In this section "prescribed" -
(a) in relation to a care plan whose preparation is the responsibility of a local authority for an area in England, means prescribed by the Secretary of State; and
(b) in relation to a care plan whose preparation is the responsibility of a local authority in Wales, means prescribed by the Welsh Ministers."

(3) In consequence of subsection (1), section 121(1) of the Adoption and Children Act 2002 is repealed.

79. The Norgrove Report proposed that, rather than scrutinising the full detail of the care plan prepared by the local authority, the court should consider only the core components of the plan which include:

the planned return of the child to their family;
a plan to place (or explore placing) a child with family or friends;
alternative care arrangements; and
contact with birth family to the extent of deciding whether that should be regular, limited or none.

80. The draft Explanatory Notes set out that the intention of the clause is to:

[...]focus the court's consideration, when making its decision as to whether to make a care or supervision order, on the provisions of the care plan that set out the long-term plan for the upbringing of the child. Specifically, the court is to consider whether the local authority care plan is for the child to live with a parent or any member of or friend of the child's family, or whether the child is to be adopted or placed in other long term care. These are referred to as the "permanence provisions" of the section 31A plan. The court is not required to consider the remainder of the section 31A plan, although Clause 5 does not prevent the court from doing so. New subsection (3C) provides that the Secretary of State may by regulations amend what is meant by the "permanence provisions."

81. The permanence provisions are defined to include provision for: the child to live with any parent of the child's or with any other member of, or any friend of, the child's family; adoption; and long-term care not within the first two provisions.

82. A number of witnesses suggested that the draft clause was narrower than the Norgrove Report recommendation because it failed to refer explicitly to contact with the birth family.[76] We put this point to Mr Timpson, who said:

We are trying to ensure that the judge's decision is based on ensuring that they can resolve the case justly and, by looking at the care plan, what the permanence provisions are. That doesn't prevent the judge in any case looking at any other aspect of the care plan that they think is necessary for them to do so in order to justly resolve the case. In that sense, there isn't anything to prevent them from looking at the contact arrangements. But I am happy to listen to the views of the Committee when they report back on their pre-legislative scrutiny on the point that you have specifically raised, because it is an important one and we want to make sure that we get it right.[77]

83. As to the practical effect of the draft clause, there was a clear split in the views of our witnesses. Groups in favour of the change include the Association of Directors of Children Services (ADCS) and Solicitors in Local Government Child Care Lawyers Group who consider that it returns the Court's practice to the originally intended scope of the Children Act 1989, whilst preserving the Court's discretion in appropriate cases. ADCS commented that:

Care plans and what is in a child's bests interests must emerge over time and be flexible to changing circumstances. Local authorities will still be expected to produce care plans and there is a specific role for directors of children's services and lead members in monitoring the delivery of plan.[78]

84. The draft clause was opposed by a number of our witnesses, including the NSPCC and legal practitioner groups such as the Association of Lawyers for Children. The NSPCC told us that:

The courts can currently play an important role in scrutinising care plans. Whilst we recognise the need to ensure judges do not spend too much time fine-tuning the details of children's care plans, which can have an adverse effect on decision-making timescales, we are concerned that these proposals remove an important safeguard for children and young people. We agree that some re-balancing of the role of the courts may be necessary to remove undue delay, but believe that they should still ask questions about aspects of the care plan other than the proposed option for permanency where it is needed to ensure high quality support for the child.

NSPCC work with our Local Authority partners identified that, at present, the quality of care planning if often worse for children who are voluntarily accommodated compared to those who have entered care. Social workers report that care planning was better for children on care orders compared to those who are voluntarily accommodated as a result of the scrutiny by the court, and in some cases they would not have had access to resources to meet the needs of the child without the involvement of the court. We are therefore concerned that without the scrutiny of the court these groups of children may not be given access to the types of support they need.[79]

85. We asked Mrs Justice Pauffley about the practical implementation of the clause, and whether judges would still be able to look beyond the permanence plans. She told us that she welcomed the retention of flexibility within the draft clause:

[...]there are many instances where, at the end of care proceedings, the children's guardian, for example, will bring it to the judge's attention that there are issues to be resolved between the local authority and the parents or future carers of the child. If those matters are left unaddressed by the judge, you may set the case off on the wrong track. For example, you may need the support provided by the local authority to the people who are going to look after the child long term: it might be therapeutic or financial, or it might be support in terms of managing the wider family and contact. If a guardian is no longer able to draw those fine-detail matters to the attention of the court, that would be a sorry thing, but that is not the intention of the draft Bill, as I understand it. There continues to be flexibility, which I welcome.[80]

She added:

I would be frankly amazed if any judge failed to respond to properly raised anxieties on the part of the guardian or, indeed, on the part of anyone involved in the care process.[81]

86. We conclude that the draft clause on care plans should be revised to make express reference to contact with the birth family, as recommended in the Norgrove Report. We consider that the concerns of groups such as the NSPCC about the restriction of the judge's scrutiny role are apposite as to the draft clause on paper; however, the evidence we received from the Family Judiciary and from Ministers is that in practice judges will retain a discretion to look beyond the permanence provisions, where they think it is appropriate to do so. If such a level of flexibility is retained by the words "is not required to consider" of proposed new s.(3A)(b) we doubt whether the draft clause will have any effect in refocusing judicial scrutiny. We suspect that, similarly to the draft clauses on the 26 week time limit and new permission tests for experts, if the quality of social work reports and care plans improves, judges are likely to have confidence in focusing solely on the permanence provisions of the care plan, exercising a wider scrutiny beyond permanency issues in appropriate cases.

87. A number of groups have particular concerns relating to the role of the Independent Reviewing Officer (IRO),[82] which is expected to further increase in importance if judicial scrutiny beyond the permanence provisions becomes less frequent. For example, the Association of HM District Judges explain that:

[...] if the scrutiny of care plans is no longer to be permitted, a corresponding strengthening of Looked After Children reviews and the role of Independent Reviewing Officers will be absolutely essential. We would refer the JSC to the observations of Peter Jackson J in the case of A & S (Children) v Lancashire County Council [...],[83] endorsing recommendations for improving the effectiveness of the IRO system. Otherwise, consideration may need to be given to removing the role of IRO from local authority control so they can be seen to be completely independent.

Further, IROs cannot possibly hope to do their job properly if they have a caseload of 100-120 as is the present position[...][84]

88. The NSPCC told us that this was a long-running debate, without any satisfactory answers, and that a lack of resolution caused difficulties with the planned draft clause on scrutiny of care plans.[85] NAIRO said that they had come to no firm position yet on the correct location for IROs:

We believe the jury is still out. We believe that in some local authorities the management arrangements provided for IROs do provide a platform for a genuinely independent, effective scrutinising service. In other local authorities this is clearly not the case and the service is failing. Ofsted has recently identified some very troubling examples of inadequate IRO services.[86]

89. We put these points to the Ministers. Mr Timpson explained the work being undertaken by the Department for Education to consider the role of the IRO:

The independent reviewing officers have an extremely important role in scrutinising and challenging care plans for children in care. [...] We have commissioned some work with the NCB to look at how they are performing and how we can improve and strengthen their performance. Ofsted are going to be doing a thematic review as well, and both will be reporting back to me in April of next year. On the back of that, I will be holding a round table with local government representatives, independent reviewing officers and others to see how we can ensure that the very important point that you raise is not lost in the other changes that we are making.[87]

90. We are encouraged by the Minister's evidence to us on the steps being taken to improve the performance of Independent Reviewing Officers, and would like to receive copies of the reports of the reviews which the Government has commissioned in April 2013.

13 HC (2010-12) 518-I, para 22 (quoting Ev 38) Back

14 Norgrove Report, p 91 Back

15 HC (2010-12) 518-I, para 73 Back

17 See para 49 Back

18 Impact Assessment, Reducing the duration of Care Proceedings Cases, 03/07/2012 Back

19 Ev w27 Back

20 From here on referred to as the Interim Report. Back

21 Norgrove Report, p 91, FN39 Back

22 Q 80 Back

23 Q 83 Back

24 From here on referred to as the Tri-borough Pilot. Back

25 Q 81 Back