Monday 16th January 2023 may well have passed you by as another working day, and without any fanfare, however it was the day upon which the public law outline was relaunched with the President ‘embarking on a campaign to exhort, require and expect every single professional, judge magistrate or staff member in the system to get back to operating the PLO in full and without exception’.
Having been familiar with the need for cases to conclude within 26 weeks after the Children and Families Act 2014 made the same a statutory requirement, the impact of COVID 19 and a significant rise in public law applications has seen that timescale become a distant memory. We are all encountering cases on a frequent basis that are concluding in their 52nd week or beyond, with numerous hearings being listed to deal with case management or in some instances to enable the Court to keep a tight rein on the progress of matters.
Well, no more!
In November, in ‘A view from the President’s Chambers’ family practitioners were given notice that a ‘radical resetting of the culture within the Family Court’ was to come in the new year. The basics of what is to be required being the following:
a. Pre proceedings are essential.
b. Only ‘those very rare cases’ that are truly urgent are to be listed for an ‘urgent’ first hearing.
c. The first hearing should be a CMH between days 12 and 18 following the application having been made with an advocate’s meeting take place not later than 48 hours beforehand.
d. Parents are to be expressly required to provide details of alternate carers within the family at, or within the week of the CMH
e. There should be no other hearing listed until the IRH at or around week 20.
f. Experts should only be instructed where it is ‘necessary to assist the court to resolve the proceedings justly’ rather than desirable or helpful.
(query when the basis for instruction of experts has ever been that it would be ‘desirable or helpful’ or used as a benchmark in our local Courts?)
g. The third hearing, if required is to be the Final Hearing.
h. At the IRH/Final Hearing the Court is only required to evaluate and decide upon the following issues:
• Is threshold crossed?
• If so, what are the ‘permanence provisions’ of the care plan?
• What are the contact arrangements?
• With the Court’s paramount consideration being the welfare of the child; what final Orders (if any) should be made.
i. The Court is not required to consider any aspect of the care plan other than permanence provisions
j. Robust case management by the Court is required at all stages. This is to include the possibility of ‘compliance hearings’ to deal with any party who does not meet filing dates with all parties having the responsibility of monitoring compliance and reporting failure.
It must be right that we are refocused to the statutory requirement of concluding cases in 26 weeks; however is the structure behind the system ready for this.
On the 2nd February 2023 Coram BAAF published their response to the relaunch of the PLO; which whilst in support of the refocus to the 26 week timetable sought to remind practitioners of best practice around the assessment of kinship carers – often one of the longest pieces of work required in care proceedings.
In the time between the initial adoption of the 26 timetable and it’s relaunch last month, best practice guidance was published in 2019 around the use of special guardianship orders and kinship assessments. There must be sufficient time for assessment (recommended to be no less than 12 weeks), a ‘testing out period’ for a child to live with their prospective carers if they have not lived with them before, plans must be comprehensive informed by the lived experience of the child and assessed needs of the child and carers and there must be clear provisions for how relationships with the birth family are to be maintained.
Whilst an example of ‘planned and purposeful delay’ would be the thorough and necessary assessment of a kinship carer or a ‘testing out’ period of the child in a kinship placement, to avoid such delay Coram BAAF reflect the need for an effective pre-proceedings process in which kinship assessments start and tools such as family group conferences are better used.
If such a process is not possible or parent’s do not give permission for any family to be approached until the matter is in Court, there are helpful suggestions to ensure that any kinship assessments do not cause delay such as initial assessments being made available in 2 weeks, the use of Reg 24 assessments to enable family members to have immediate care of a child/children and better use of the family group conference to reduce the amount of assessments required to those who are ‘best placed’ to care for a child.
With many of the authorities we work with seeking no less than 16 weeks for kinship assessments and all parties in proceedings becoming increasingly used to deadlines throughout proceedings not being met the process of refocus is likely to take some time.
It remains to be seen how judges apply their discretion to extending proceedings when family members are identified beyond week 2 of proceedings, and how is that parents will be allowed to justify the late provision of names.
It is difficult to argue against the returned to a more focused care system, but the system is very different to that of 2014 when the 26 week concept was introduced and 2017 when nationally, 62% of cases concluded in that time. Resources are increasingly stretched both in Local Authorities and the community; social worker levels in safeguarding and assessment teams can fluctuate impacting on timescales and whilst we are all encouraged to see COVID as behind us, can that really be the case when it has changed so much in what is available day to day to vulnerable families to divert them from the care system?
The President has started the cogs whirring in the machine, but many more need to start turning (and turning smoothly!) it would seem before we return to 26 weeks as a norm.