Chapter 5: The Voice of The Child
109. In conducting our inquiry, we considered
it important to seek the views of children with experience of
the care system and adoption processes. We are grateful to the
Office of the Children's Rights Director, Dr Roger Morgan
MBE, for arranging two meetings at which we heard the views of
a diverse group of children. The views expressed in those meetings
inform some of our recommendations here.[127]
110. One of the key themes that emerged across
the two groups was a sense that children were not listened to
when important decisions were being made about their lives:
"They don't listen to me because I'm a looked-after
child and they are professionals."[128]
"People only listen to what they want to
hear."[129]
111. One young person had been on the point of
being adopted but had had reservations about her new adoptive
family: "I told my social worker but they didn't listen.
Then at the last moment the family pulled out."[130]
Many others in the group of adopted children said they had been
old enough to have a view when they were adopted but had not been
given a chance to have their say. Some felt that professionals
presumed that some children were too young to comment or understand
and therefore failed to ask them their views.
112. The other issues that were very important
to the children and young people were support in schools and sibling
contact. We deal with those matters in Chapter 7 on Post-adoption
Support and Chapter 8 on Post-Adoption Contact. This chapter considers
the role of professionals whose job it is to represent children
and advocate on their behalf.
Advocacy and representation for
children
113. Children in care find themselves engaged
with a wide range of different agencies and professionals, all
of whom are seeking to act in the best interests of the child.
Some professionals are concerned solely with providing representation
on the part of children involved in proceedings. These include
Independent Reviewing Officers, who provide a review function
for local authority decision making, and guardians from the Children
and Family Court Advisory and Support Service (CAFCASS), who represent
children in legal proceedings.
Independent Reviewing Officers
114. Section 118 of the 2002 Act introduced the
new statutory role of Independent Reviewing Officer (IRO), with
responsibility for the process of reviewing looked-after children's
cases. Section 118 amended section 26 of the Children Act 1989,
so that local authorities are required by regulations to appoint
IROs to participate in the review of children's cases; monitor
the authority's function in respect of the review; and refer a
case to CAFCASS if the failure to implement the care plan might
be considered to breach the child's human rights.
115. The statutory guidance for independent reviewing
officers estimates that a caseload of 50 to 70 looked-after children
per IRO would represent good practice, and allow the delivery
of a quality service.[131]
There is at present concern, in light of the judgement in A
& S (Children) v Lancashire County Council,[132]
about the workload of IROs. Mr Justice Jackson found that
the workload of the IRO had limited the ability to review appropriately
the care plan of the children concerned (see paragraph 125). The
case was referred to by Jenny Clifton, Principal Policy Advisor
at the Office of the Children's Commissioner:
"The IRO there had up to 200 cases at one
point and was expected to know those children, know their care
plan, know the legal situation and become familiar enough to pursue
the progress of their care plans. That is an impossible situation."[133]
116. These concerns were echoed in evidence from
CAFCASS, Resolution, Nagalro, the Interdisciplinary Alliance for
Children and many other contributors to our work.
117. There were mixed views on the relevance
and effectiveness of the IROs amongst the children we met. In
one group, only 4 out of 15 children felt that their IRO had been
helpful. Those who spoke positively emphasised the importance
of the role, stating that IROs always explained the care plan,
and helped to ensure that the child's voice was heard. Five of
the children, however, did not know who or what an IRO was. Many
of those with negative views criticised the lack of contact that
they had had with their IRO.
118. The National IRO Managers Group stated that
experiences were mixed and varied by authority. The complexity
of cases also needed to be considered when making judgements about
workload, in addition to the overall volume of cases being handled
by individual IROs.[134]
119. Under proposals in clause 15 of the Children
and Families Bill it is anticipated that court scrutiny of care
plans will be reduced. A child's solicitor or guardian will, in
court, be restricted to exploring the category of placement planned
for a child. This means that a greater degree of scrutiny of care
planning will fall upon the IRO service, further adding to the
workload of those working in the service.
120. We are concerned that some Independent
Reviewing Officers (IROs) are charged with reviewing the care
plans of too many children, when statutory guidance suggests that
they should handle no more than 70 cases at any one time. We believe
that excessive workloads prevent IROs from carrying out their
statutory duties to promote the best interests of the child. We
recommend that the number of cases handled by IROs should be monitored
more robustly by IRO managers, and that action should be taken,
where appropriate, to reduce workloads. Local authorities are
currently under a duty to appoint IROs to review children's cases
and should appoint a sufficient number to enable IROs effectively
to carry out their statutory duties.
THE INDEPENDENCE OF IROS
121. Currently, the majority of IROs are employed
directly by the local authority whose decision-making they review.
A minority of IROs work with councils as self-employed professionals,
on a contract basis. The regulations and statutory guidance provided
for the IRO service recognise the tension between the independence
of IROs and their employment within the local authority. A number
of measures are set out in guidance[135]
to seek to protect independence in this context.
122. Despite these measures, concerns regarding
the independence of IROs do exist, with reports that IROs "have
found difficulties in challenging local authority care plans."[136]
These concerns were widespread in the evidence that we received.
CAFCASS conceded that: "locating [IROs] within the authority
certainly creates compromises."[137]
The Interdisciplinary Alliance for Children[138]
and BASW agreed.[139]
123. Provision already exists, in Section 11
of the Children and Young Persons Act 2008, for the establishment
of an IRO service which is independent of the local authority.
The relevant provision has not yet been implemented. We believe
that the Government should give further thought to this matter.
124. We believe that IROs could discharge
their duties more effectively if they were employed outside the
local authority. It would be necessary for a sufficient number
to be appointed to deal with relevant case loads. We recommend
that the Government implement Section 11 of the Children and Young
Persons Act 2008 to achieve this.
THE REVIEW AND REVOCATION OF PLACEMENT
ORDERS
125. Judgment in the case of A & S (Children)
v Lancashire County Council was given during the course of
our inquiry. That case concerned two boys who were made available
for adoption under the old freeing for adoption orders[140]
in 2001. The boys remained under the freeing orders for 11 years
without ever being placed for adoption, during which time they
experienced an excessive number of placement moves. The court
determined that there had been primary failings in front line
social work, with a contributory factor being the inadequacy of
the IRO system, which did not pick up on and remedy the primary
problem.
126. Whilst this is clearly an extreme case,
we are aware that other examples of poor review practice exist.
We are concerned for the welfare of children who are the subject
of freeing for adoption orders, or placement orders, but have
not been placed for adoption. Evidence has shown that there is
an age beyond which the potential for these children to be adopted
diminishes significantly; it is therefore essential that the status
and circumstances of these children are subject to regular review.
127. Under section 24 of the Adoption and Children
Act 2002 there is a statutory route for local authorities to apply
for the revocation of a placement order, where a suitable match
for the child has not been identified. The statutory guidance
for IROs states that, where a child is subject to a placement
order but has not yet been placed, the IRO must hold regular reviews;
the first review after 3 months, and thereafter at least every
6 months.[141] If a
child has not been placed by the time of the second review, specific
consideration must be given as to whether the child should still
be placed for adoption. If the adoption plan is changed, the IRO
should be alert to the need for the local authority to apply for
revocation of the placement order. Where this fails to happen,
the guidance states that it "may be necessary for the IRO
to assist the child to make the application, or to ensure that
an application is made on his behalf."[142]
We are concerned that the statutory guidance on this matter is
not always being followed.
128. We believe that it is essential that
IROs undertake regular reviews of the circumstances of children
subject to placement order but not yet placed for adoption, as
they are required to by statutory guidance. Where appropriate,
IROs need to ensure that an application to the court for revocation
of a placement order is made. IRO managers and Directors of Children's
Services need to ensure that the guidance on children subject
to placement order but not yet placed for adoption is always followed.
The role of CAFCASS
129. A guardian is appointed by the court to
represent children in care and placement order proceedings. The
guardians are generally provided by CAFCASS. It is expected that
the guardian appointed for the care proceedings will also be the
guardian for the placement order proceedings. The guardian will
usually instruct a solicitor on behalf of the child.
130. The CAFCASS guidance for placement proceedings
sets out the duties of children's guardians. These state that
the guardian must:
- Meet the child and give advice as appropriate
to age and understanding;
- Contact and / or try to interview appropriate
people involved in the child's life;
- Seek appropriate professional assistance
where necessary;
- Write a report to the court, addressing
the welfare checklist contained in the Adoption and Children Act
2002 and drawing attention to any issues which will be of assistance
to the court in considering the application.
The children's guardian, or the solicitor appointed
to the child, must attend all directions hearings unless the court
directs otherwise. The appointment of the children's guardian
ends at the conclusion of placement proceedings; the CAFCASS guidance
makes clear that the guardian should be in contact with the child's
IRO at this point, to hand over relevant information.[143]
131. Anthony Douglas, Chief Executive of CAFCASS,
explained that the organisation was currently handling record
numbers of cases. CAFCASS had expanded its workload by around
48% in the last four years.[144]
In July 2012, 99.9% of cases being handled by CAFCASS had had
guardians allocated; there were only four unallocated public law
cases at the time that Mr Douglas spoke to us.[145]
132. CAFCASS is performing well as far as the
allocation of guardians is concerned. We did, however, receive
evidence to suggest that the performance of CAFCASS guardians
was variable and sometimes inadequate. Alex Verdan QC described
CAFCASS as "overstretched and beleaguered."[146]
Ian Bugg, of the Family Law Bar Association, believed that practice
was "incredibly variable around the country."[147]
133. There was a feeling amongst some local authorities
that the work of CAFCASS can contribute to court delays. Warwickshire
County Council argued that the workload experienced by CAFCASS
guardians meant that they were not able to understand fully the
cases in their care; this led to increased court demand for independent
assessments. Similar views were expressed by Birmingham City Council's
Adoption Service, Adopt WestMids and the Tri-borough partnership
of authorities.[148]
134. CAFCASS acknowledged that, whilst allocation
rates were extremely high, some guardians were facing workload
pressures.[149] There
were, however, some signs of improvement; the confidence that
some witnesses had in CAFCASS was increasing. Mr Justice
Ryder argued that "our general experience is that these guardians
are working well and, although there have been issues in the relatively
recent past—the Select Committee reporting on CAFCASS made
those issues very clear—the practice at the moment is improving."[150]
135. We welcome the fact that CAFCASS is proving
successful in allocating guardians to all children; this is commendable
given the significant increases in care proceedings over recent
years. We are concerned, however, that the quality of this provision
can sometimes be variable.
136. We recommend that CAFCASS continue to
ensure consistency of practice. The Government should ensure that
CAFCASS has sufficient resources to allow for guardians to be
allocated to all children subject to care and placement proceedings,
and for those guardians to have an appropriate amount of time
available to allow them to discharge their duties effectively.
127 The views expressed in the discussions with children
are summarised in a report by the Children's Rights Director for
England: Improving Adoption and permanent placements, January
2013: http://www.parliament.uk/business/committees/committees-a-z/lords-select/adoption-legislation-committee/publications/ Back
128
ibid. Back
129
ibid. Back
130
ibid. Back
131
IRO Handbook: Statutory Guidance for independent reviewing officers
and local authorities on their functions in relation to case management
and review for looked after children, Department for Children,
Schools and Families, March 2010; page 50. The guidance is issued
under two provisions: The Children and Young Persons Act 2008,
which created a new power for the Secretary of State to issue
statutory guidance to IROs; and section 7 of the Local Authority
Social Services Act 1970, which requires local authorities, in
the exercise of their social services functions, to act under
the general guidance of the Secretary of State; unless there are
exceptional reasons local authorities must follow the requirements
set out in this guidance. Back
132
[2012] EWHC 1689 (Fam). Back
133
Q 540 Back
134
National IRO Manager's Group, written evidence Back
135
IRO Handbook, op. cit., page 12 Back
136
Q 540 Back
137
Q 272 Back
138
Interdisciplinary Alliance for Children, written evidence Back
139
BASW, written evidence Back
140
Freeing for adoption orders were replaced by placement orders
under the Adoption and Children Act 2002. Back
141
IRO Handbook, op. cit., page 25 Back
142
ibid., page 26 Back
143
Guidance for Placement Proceedings, CAFCASS, 2011 Back
144
Q 263 Back
145
Q 259 Back
146
Alex Verdan QC, written evidence Back
147
Q 644 Back
148
Written evidence from Adopt WestMids, Birmingham City Council's
Adoption Service, Tri-borough partnership, Warwickshire County
Council Back
149
Q 259 Back
150
Q 784 Back
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