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‘Between a rock and a hard place’ – Re B-S and 26 weeks

Date:27 MAR 2015
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Julie Doughty, law lecturer at Cardiff University, and editor of Seen and Heard

Inconsistent quality and practice in undertaking viability assessments was amongst a range of hot topics discussed at Nagalro’s spring conference on care proceedings, held on 16 March. Current practice at the initial stage in assessing potential kinship carers emerged as a major problem in ensuring that all realistic placement options for children have been explored, in the spirit of Re B-S ([2013] EWCA Civ 1146, [2014] 1 FLR 1035).

Almost 150 lawyers, social workers, expert witnesses and other family justice practitioners had gathered at St Catherine’s College, Oxford, to consider the dilemmas posed by the tensions that can arise between the Family Court’s requirement for a global, holistic evaluation of the options for placing a child under a care order and the time limit of 26 weeks imposed on care proceedings under the Children and Families Act 2014. The day conference was chaired by the President of the Family Division, Sir James Munby. The speakers were Cyrus Larizadeh, barrister at 4 Paper Buildings; Dr Karen Broadhurst, University of Manchester; Uma Mehta CBE, Islington Borough Council; Bridget Lindley OBE, Family Rights Group; and Professor Jonathan Dickens, University of East Anglia. Their topics included: the principles laid down in Re B-S and subsequent cases; research on recurrent proceedings where young mothers experience successive removal of their babies; the pressures on local authorities to comply with court deadlines; whether these deadlines allow sufficient time to explore the parents’ capacity to change and suitable options of family and friends carers; and the role of the independent reviewing officer during the proceedings and beyond.

Family Rights Group are concerned about the use of viability assessments and have evidence that some appear to be peremptory. A potential kinship carer will not know where to turn for advice about their options. It was not even clear that there was a consistent definition amongst practitioners of what a viability assessment was. Points raised in the discussion included how long a typical assessment should take, as it seems that some are just brief phone calls, with no paper trail. It was noted that when adoption panels’ functions had included the adoption decision, questions would have been asked about other carers, which may not be asked now. On a show of hands, most attending thought that it was better practice for a viability assessment to be undertaken by an independent specialist within the local authority, rather than by the child’s social worker. However, this could add to delay. There were differing views about the right entry points in the process for viability assessments to begin, and who should be responsible for exploring these options at different stages. It was concluded that confidence in family justice might be improved if steps could be taken to clarify the rights and responsibilities of parties and agencies in relation to viability assessments.

Throughout the day, the President reminded the audience of the value of continuous inter-disciplinary feedback and dialogue, to which those attending had contributed, in seeking to resolve the ongoing tensions in the family justice system.

A more detailed report on the conference and papers by the speakers will be published in forthcoming issues of Seen and Heard.
Capacity to Change
Capacity to Change
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