Children and Families Bill

Memorandum submitted by NAGALRO (CF 33)

Nagalro’s overarching concerns centre on the implications of the Bill for safeguarding the rights and welfare of the children involved. It is from this perspective that we make our response. Taking the Bill as a whole we are disappointed by the absence of accessible legislative safeguards for children in both public and private law proceedings. We are also concerned that some changes designed to facilitate adoption have been drafted in a way that will damage the interests of the large number of older children who are looked after by local authorities for whom adoption is not an appropriate care plan. A more careful balance is needed to recognise the breadth of situations in which children come in to the care of the local authority.

Clause 1 Placement of looked after children with potential adopters

1. Essentially this clause introduces concurrent planning but we are concerned that there are insufficient safeguards to ensure that local authorities continue to consider placement with family members where these have not yet been ruled out. The logistical and resource limitations mean that local authorities will be under fewer obligations to ensure that kinship care is properly considered or that contact with birth families is maintained in a way that is meaningful enough for the child to ensure that a proper choice of options is available to the child and the courts. The risk could be reduced by requiring the Local Authority to consider concurrent planning but retain a requirement to consider placement with family members when these have not been ruled out. Otherwise there is a risk that cases will be decided through passage of time rather than on the original facts of the case.

2. Dual-approved foster carers need specific assessment and skilful support: not all adopters would wish or be able to take on this task with the associated uncertainty. The model is mainly appropriate for younger children and infants. The majority of children needing permanence cover a wider age range.

3. Immediate placement in foster-to-adopt homes will not be appropriate even for all babies and young children. Confidentiality of placement may be more difficult to maintain, especially when children are having regular contact with parents before an adoption care plan decision has been made. In addition some Voluntary Adoption Agencies may not consider children without a Placement Order.

Clause 2 Repeal of requirement to give due consideration to ethnicity.

4. Removing the requirement to ‘give due consideration to the child’s religious, racial origin and cultural and linguistic background’ when placing a child for adoption is a retrograde and counterproductive step. This risks putting the UK in breach of Articles 20(3) and 30 of the United Nations Convention on the Rights of the Child (UNCRC), which was ratified by the UK in 1991. The guidance already requires that children should not be denied an adoption because a precise ethnic match cannot be found.

5. The removal of the requirement to consider religious and cultural issues is also problematic and may mean that birth parents of a particular religious persuasion may refuse their consent on that basis alone. In particular, knowledge of one’s religious and cultural heritage is an important part of identity.

6. We agree with the House of Lords Select Committee on Adoption’s proposal that religious and cultural issues should be included.

7. Otherwise we are in danger of swinging from one extreme to another and establishing an inappropriate balance between over consideration of race and culture to no consideration at all.

8. Experience from those counselling adult adopted people in successful transracial placements usually showed adopters sought to help the child form a secure identity. If no consideration is given to these issues when considering a match, it could be extremely detrimental to the child’s long term welfare as they may feel that they have been deprived of part of their cultural inheritance.

Clause 4 and 5 Adoption Support Services: personal budgets and duty to provide information.

9. Many adopters are unaware of support services which might be available to them. Provision is very patchy and varies considerably across the country and it may not be possible for adoptive parents to travel long distances to receive the support they need. Children’s needs change as they develop. Support plans and resources identified at the time of placement may prove to be inadequate as the full scale of difficulties may only become apparent later. We are concerned that adopters may find that as their child enters adolescence they need different and more substantial help from that initially identified. Adoptive parents may not know what services exist, which they have a right to access or where to go to find out.

10. There is also a danger that the range of privatised support services may not fit the complex needs of children and families have. Service provision is likely to be fragmented and some services may be fragile and may not survive.

Clause 6 The Adoption and Children Act Register.

11. We understand that the government’s intention is to fast track adoption and achieve permanence for children as soon as possible. This is clearly desirable provided that the necessary background assessment work has been thoroughly carried out by the local authorities who must be mindful of the parent’s and child’s rights to family life under Article 8 UNCRC.

Clause 7 Contact: children in the care of local authorities.

12. Nagalro is extremely concerned about how clause 7(3) will be interpreted and used by local authorities as it effectively dilutes the presumption in favour of contact. It is already the case that if contact is not conducive to the child’s welfare then it falls outside the scope of reasonable contact.

13. We are particularly concerned about this provision in relation to the whole range of children who find themselves in local authority care, especially older children. Research and experience show that this clause may backfire as insufficient time and resources will be devoted to maintaining contacts with connected people who are important to children and who have something to offer them, to the long term detriment of the wider population of older and difficult to place children looked after by local authorities, many of whom will not be adopted. This is particularly true in relation to the separation of siblings. This clause takes too narrow a view in focusing on the needs of only a small percentage of children in public care. Children frequently return to their families when they leave care and it is vital that healthy links are fostered before this point.

14. Contact should be child centred and the child will have their own view. It is in this area that the Children’s Guardian role is so important in ascertaining the wishes and feelings of the child and representing them accurately to the court. We suggest that a relaxation of the leave requirement in s10 CA 1989 would go some way to providing a legislative safeguard provision for children. (In this context see also our response to Clause 12)

Clause 8 Contact post adoption

15. Following on from the above, adopted adults often feel most aggrieved about separation from siblings: not all contact is just with parents. The wider extended family is important too.

16. Indirect contact via letter box needs skilled support particularly with parents with learning difficulties or mental health conditions.

17. The court has an existing duty to consider contact when making an adoption order. We are concerned that the importance of this is not diminished to the detriment of the child and their long term relationships. How will the voice of the children involved be heard as they are not routinely represented in adoption proceedings? Clause 8(4) gives the child the right to apply for contact but how will they know about this, how will they exercise their right and how will it be funded?

18. Further, parents may perceive this clause as prejudging the outcome of the court proceedings. The danger is that in the present situation where services are under increasing time and resource pressures, this clause could act as a perverse incentive for local authorities to undertake limited or inadequate assessment and support work.

19. The continuing increase in care proceedings has combined with financial restraints to put local authorities under great pressure. Local authority performance is extremely variable. The reality is that whilst some practice is of a very high standard, some is not. There are authorities across the country with high staff turnover and difficulties in retaining experienced workers leading to over-use of agency and inexperienced practitioners. Research 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 again shows only 42% of cases does the local authority provide all the information to the court that it is required to do by the Public Law Outline. [3]

20. Social work assessment must be front-loaded. This means that for robust, accurate decisions about children at risk of abuse and neglect to be made in a timely way the most skilled, specialist-trained social workers need to be involved early in the process. Courts need high quality social work assessments about complex issues of risk, parenting and capacity to change at the start of a case. These need to assess not just parents but also any potential kinship carers. Only when the full assessment is complete are courts able to resolve cases without delay.

Clause 10 Family Mediation: Information and assessment meetings.

21. We are far from convinced that the safeguards in place to ensure that domestic violence or other welfare issues cases are filtered out from the Mediation Information and Assessment meeting (MIAM) system’ As private law cases are diverted away from the courts and legal aid in private law cases is largely withdrawn, mediation services will assume a frontline role in screening for domestic violence and child abuse. The majority of mediators, however, have very limited, if any, child protection background or experience and moreover they are not officers of the court.

22. The primary purpose of the MIAM is to assess separating couples’ suitability for mediation and to encourage separating partners to reach agreements through mediation rather than court based processes. Part of the task is to identify and screen out of the system those cases which are unsuitable for mediation because of issues of domestic violence or child protection. This places a considerable reliance on the skills and experience of the mediator carrying out the MIAM.

23. The role of officers of the court is not sufficiently clear and the links between mediation and Cafcass services are not clearly articulated. There is no integrated national scheme of child protection linkage between mediation Cafcass and social services and in its absence there is ample scope for vulnerable children and adults at risk to slip through the wide cracks in the system.

24. Effective mediation services are an essential element in delivering faster family justice in private law cases but we concur with the warning notes sounded by Professor John McEldowney speaking at the Family Mediation Association’s (FMA) annual conference in September 2012 that we must recognise the boundaries of the role mediation plays in the justice system as a whole. As he said bad mediation is expensive to resolve and restoring bad mediation to justice is hard to do. As yet there is no umbrella training and regulatory body for mediators and inevitably this leads to wide variations in practice skills and experience. Screening by mediators for risks of violence or abuse to children and adults is not a substitute for safety checks or for judicial findings of fact.

25. Children are likely to have suffered physical abuse themselves in as many as 40-60% of domestic violence cases. [4] Domestic violence features in the lives of 37% of children who are receiving social work interventions and 60% of those are on the child protection register. [5]

26. The Family Justice Review expressed substantive concerns about how the voice of the child is to be heard in private law proceedings but the government has failed to explore options for progress in this area.

27. There is evidence from research and from professionals involved in courts proceedings that vulnerable children in private law proceedings are not protected by the same risk-assessment procedures or indeed basic screening mechanisms that protect their counterparts in public law proceedings.

Clause 11 Welfare of child-parental involvement.

28. Within the existing law and court rules there is already a well-established presumption that the child’s best interests will be best served by maintaining a relationship with both parents following separation unless there are reasons to the contrary.

29. The impetus for change appears to be being driven by a focus on parental rights rather than children’s welfare. Research from other jurisdictions has consistently indicated that legislation which leads to an assumption of shared parental time is not in the interests of the children involved. Moreover it may lead to conflict between two potentially conflicting statutory imperatives-namely the paramountcy of the child’s welfare and the presumption in clause 11(2) which will lead to a perception of entitlement to equal parenting time (Denmark has recently repealed such legislation).

30. Mothers have felt discouraged from disclosing family violence and child abuse concerns because of their belief that there is a legal starting point for shared time, so there is no point in disclosing violence. The two legislative objectives often compete for priority in litigated cases. Moreover, for those cases which go to court, we do not consider that the Cafcass private law s 16 CA 1989 risk screening processes are sufficiently robust to be effective. Children are not routinely seen and the screening is carried out at arm’s length via a prescribed telephone script on the basis of the necessarily subjective information supplied by the two adult partners.

Legislative safeguards needed for children

31. In view of all of the above, we would ask that much greater consideration be given to the specific procedural safeguards necessary to ensure the safety and well-being of children whose parents are separating. If the Government is minded to make legislative changes, then we would urge them not to do so without also putting in place the two key legislative safeguards for children below.

32. The implementation of s122 Adoption and Children Act 2002 - using the President's Direction of 2004 as guidance - would add s8 residence and contact proceedings (or the new Child Arrangements order) to the list of specified proceedings in which a child may have party status and separate representation by a children’s guardian and a children panel solicitor.as in the tandem model in public law proceedings.

33. Relaxation of the leave requirement S10 CA 1989 leave requirement for competent children. The Family Justice Review considered removing the requirement for grandparents to apply for the leave of the court under s10 CA 1989 before making a s8 CA 1989 contact application. It did not, however, consider removing the same leave requirement for competent children. The CA 1989 envisaged that in certain situations children and young people would need to seek leave to make their own applications to the court. Theoretically, this provides a route for children to bring cases back to court if necessary and this was intended to constitute a safeguard provision.

34. In practice, the process presents children with a virtually impassable obstacle course of procedures, which includes testing the competence of the solicitor who is testing the competence of the child and the requirement to obtain permission from a high court judge. This means that what should be a potential safety net route to review for children is effectively blocked. In practice it happens so rarely that the LSC do not keep any statistics. A provision to relax the leave requirements as originally recommended by Dame Margaret Booth when Chair of the Children Act Advisory Committee, would be a positive backstop safeguarding provision.

Clause 12 Child Arrangements Order.

35. We remain concerned that the substitution of child arrangements orders instead of residence and contact orders will be a largely cosmetic change which is unlikely to solve the problems of perceived winners and losers. In reality, arrangements for residence and contact will be different and would have to be considered separately within the proceedings. Of greater concern is the earlier proposal in the draft legislation that would repeal provisions requiring the court in divorce proceedings to consider arrangements made for children in the family. Such a provision would considerably weaken one of the few remaining safeguards for children in private law proceedings as it would mean that there would be no possibility of any objective judicial scrutiny of the arrangements for children as even the present paper scrutiny of the proposed arrangements would go. There is ample evidence from research and practice that illustrates how powerless and bereft children feel in the face of the new and disturbing events triggered by their parent’s separation. Once their residence and contact arrangements have been agreed, children can be effectively locked into arrangements which may be unsafe, inappropriate or which no longer meet their developing needs. The historic differentiation of children in public and private law proceedings has not served children well, as it has masked the harm arising from exposure to domestic violence and abuse. The links are now much more clearly understood but the paucity of direct support services leaves many children extremely vulnerable. We are concerned that too little consideration has been given to taking the opportunity offered by the Bill to put in place the necessary safeguards for children at risk.

36. The comments about legislative safeguards made above at paragraphs 31 -34 apply equally here. Research indicates that children are not aware of anything they themselves can do to initiate a change or review of their situation. [6] We believe this requires specific amendment to provide an accessible route for children.

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

37. We are concerned that the new proposals will lead to miscarriages of justice through the pressure on courts not to use expert evidence. This is for two main reasons: because it is often inaccurately seen as a cause of delay and because curtailed timescales will militate against the court obtaining good enough information on which to base its decisions. As the Family Justice Review said: "Expert evidence can often be necessary to a fair and complete court process ." [7] Without suitable expert evidence there are likely to be more wrong decisions for children, more appeals and more delay.

38. The FJR’s conclusions on expert evidence appear to lack a sound evidence base. Two recent pieces of research support this view: the report by Oxford University into the contribution that independent social work (ISW) expert reports make to family proceedings [8] and a survey by Cafcass of care proceedings during three weeks in November 2011 [9] .

39. Dr Brophy and her team found that ISW assessments provided new evidence about parents or others who had not been assessed by local authorities, or 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. This was evidence that courts needed in order to make their decisions.

40. In contrast to concerns about the local authority workforce [10] Brophy et al found that ISWs are independent, highly skilled and experienced with a median 24 years in child protection work. They were child-focussed and had ‘added value’ because of their high quality, timely, forensic work.

41. Cafcass Children’s Guardians, surveyed in 2011, 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. Robust case management and availability of expert witnesses were factors associated with no delay. Factors related to delay in the provision of expert evidence included delay in the letters of instruction being sent out, the lack of availability of suitable experts, and appointment of the Official Solicitor for parents who lack capacity.

42. The whole system by which expert evidence is commissioned at present is, in Nagalro’s view, dysfunctional and works against the interests of the vulnerable children involved. Cases where the court considers it does need to instruct an expert have experienced lengthy delays while exchanges take place between the Legal Services Commission (LSC), courts, solicitors and experts about costs and hours for the work. Nagalro members report numerous examples where a court has ordered an assessment but LSC refuse to fund it in whole or in part. In some cases LSC has made arbitrary cuts in how many hours it will fund after an expert has set out their professional estimate of what is required for the task, causing an expert to withdraw. This results in further unjustified delay for the child.

43. In addition the removal of the appeal mechanism will result in some children not having their needs identified.

Clause 14 Care supervision and other family proceedings: time limits and time tables.

44. 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.

45. For example in one case a young girl was willing to give evidence and requested this took place after her GCSEs she was a very able student. In this case the time required would have gone beyond the 8 week extension.

46. 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. Wherever possible it will assist if this work is done by local authorities before proceedings start. This is not possible in emergency cases. In cases already known to local authorities there are two problems with work undertaken pre-proceedings:-

47. Firstly parents’ legal representation is limited in the pre-proceedings stage, placing parents at a disadvantage. The child lacks any independent representation at this stage.

48. Secondly the problem is compounded by the fact that without a court and a guardian to monitor timetables, these steps are likely to take longer. This will prolong the child’s journey to a final decision.

49. Nagalro is committed to reduce delay for children, and recommends maintaining full judicial discretion over the length of care proceedings. 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 Care Plans.

50. We believe strongly 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:

51. "…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." [11]

52. 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 indicatedin the Family Justice Review [12] can be crucial issues for children’s welfare, and not neatly separated off from permanence options.

53. 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.

54. 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 in tandem with the solicitor as part of their role to safeguard the welfare and best interests of the child.

55. 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.

56. 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. [13]

57. 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) [14] . 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.

58. We are deeply concerned that such a change will be counterproductive in leading to poorer long term outcomes for the children involved.

March 2013

About Nagalro

Nagalro is the professional association for Children’s Guardians, Family Court Advisers, and Independent Social Workers.

It has approximately 700 full members in England and Wales who represent the interests of children in a range of public and private law proceedings. Members undertake work in a variety of roles: some work for the Children and Family Courts Advisory and Support Service (Cafcass). Many act as Independent Social Workers providing expert witness reports in a wide range of complex cases coming before the courts.

Members also work for fostering and adoption agencies, as trainers and educators, and in clinical practice as therapists. Many have significant experience as managers, chairs of Adoption Panels and other specialist social work practitioner roles.