Family Law

The Children and Families Act came into force in April 2014, introducing wide-ranging reforms to the Family Justice System.

At the heart of the reforms in the public law arena was a  revised Public Law Outline (PLO). The Department for Education (DfE) commissioned  Research in Practice to review the impact of the reforms on the Family Justice System through investigation with a range of professionals including lawyers, social workers and case managers. Their reports (available to download below) were made available on 27 August 2015.

The first phase of the review aimed to:

• Gain an understanding of the impact of the reforms on local authority practice and processes. 
• Identify examples of changes to practice which have led to improvements. 
• Identify whether there have been any negative unintended consequences of reforms. 

The findings of the report included:

• Views of the impact of the 26 week PLO timeframe were generally positive. This was seen as resulting in more timely decision-making for children. The focus on the pre-proceedings stage was crucial, although the timescale was not yet being met in all areas.
• There remain identifiable challenges in relation to pre-proceedings work include including lack of resources and potential family carers not coming forward until the later stages. 
• Local authorities are taking a proactive approach to identifying potential family members as alternative carers. 
• Local authorities report improvements in the quality of social work evidence produced, although work still needs to be done in this area.
• Case managers have a key role in supporting and collaborating with the professionals in the case and considering all the options for the child.
• Some Local Authorities have seen an increase in the number of children placed with parents under care orders. Suggested reasons for this include insufficient time to carry out assessments within the 26 week timescale and caution in court following recent decisions such as Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) , [2015] 1 FLR 1035 (although notably the research was carried out only a short time after the judgment in Re R (A Child) [2014] EWCA Civ 1625, [2015] 1 FLR 715 and so the impact of that judgment may not have had time to take effect).

The second phase aimed to explore professionals' views on Special Guardianship Orders (SGOs), in particular:

• Changes in approach to the way SGOs are being recommended and used since the reforms.
• The circumstances in which special guardianship tends to be viewed as a positive option.
• Identification and assessment of extended family members/connected persons.
• Preparation and support for special guardians.
• The courts’ approach to granting SGOs and the outcomes for SGOs.

That phase of the report found that:

• There was a perception that there has been an increase in the number of SGOs being made, in part as a result of the family justice reforms, but also as a result of recent decisions such as Re B and Re B-S (although as noted above, the full impact of the judgment in Re R had not necessarily had time to take effect).
• Social workers were pro-active in the early identification of extended family members, however it was recognised that practice in this area needs to continue to develop, to ensure sufficient engagement with the wider family at the earliest stages. Although Local Authorities do use Family Group Conferences, these are often not held soon enough and family members are often not identified before proceedings, which raises challenges. 
• Family members often come forward as potential special guardians during proceedings, once the court has decided that the child cannot remain with their parents. Many courts do not have a cut-off point for family members coming forward. This can impact on assessments and consequently time scales.
• There is a concern amongst some regarding SGOs being used for babies and infants and a feeling that this contradicts the original intention of SGOs being used for older children in long-term foster care or with an established relationship with the carer.

It was noted throughout the review that the evidence was limited in scope and that further research needs to be done to investigate the longer term impact of the reforms. The review concludes that future research would need to explore the views of the judiciary and should also incorporate an analysis of case files and monitoring data.

The Nuffield foundation has recently indicated its intention to commission a project to improve research relevant to Family Justice issues. Whilst these reports provide valuable evidence of the views of the professionals consulted, it is to be hoped that over time such improvements in research would lead to more conclusive evidence of the impact of the reforms.

The report Impact of the Family Justice Reforms on Front-line Practice Phase One: The Public Law Outline is available to download here.

The report Impact of the Family Justice Reforms on Front-line Practice Phase Two: Special Guardianship Order can be accessed here.