In terms of actual numbers, in 2014/15 the Family Courts in England received 11,159 applications for a care order, in 2016/17 this rose to 14,599 and in 2017/18 the figure was only a tad lower at 14,226.
This additional caseload, alongside the similar rise in private law cases, falls to be dealt with by the same limited number of judges, magistrates, court staff, CAFCASS officers, social workers, local authority lawyers, and family lawyers in private practice. These professional human resources are finite. They were just about coping with the workload in the system as it was until two years ago, and were largely meeting the need to complete the cases within reasonable time limits. My view now is that the system, that is each of the professional human beings that I have just listed, is attempting to work at, and often well beyond, capacity. As one Designated Family Judge said to me recently, the workload and the pressure are “remorseless and relentless”. I am genuinely concerned about the long-term well-being of all those who are over-working at this high and unsustainable level. Some have predicted that, if the current situation continues, the Family Justice system will “collapse” or “fall over”, but, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may “collapse” or “fall over”. Indeed, that is already happening and I could give you real examples of this happening now.
It is because of the high level of concern that I have for all of those working in the system that I have made addressing the rise in numbers, as I have said, my Number One priority. Other issues that come to The President, important though they may be, must take second place.
Returning to the rise in public law case numbers, and speaking now for myself, it seems to me obvious that if there has been a very significant and sudden rise in the number of cases coming to court, these “new” cases must, almost by definition, be drawn from the cohort of cases which, in earlier times, would simply have been held by the social services with the families being supported in the community without a court order. The courts have always seen the serious cases of child abuse, where, for example, a baby arrives close to death at an A and E Unit following a serious assault, or cases of sexual abuse or cases of serious and obvious neglect. No one suggests that there has been a sudden rise of 25% in the number of children who are being abused in this most serious manner. Further round the spectrum of abuse lie those cases which, whilst nonetheless serious, do not necessarily justify protecting the child by his or her immediate removal from home. These are more likely to be cases of child neglect and will frequently involve parents whose ability to cope and provide adequate and safe parenting is compromised by drugs, alcohol, learning disability, domestic abuse or, more probably, a combination of each of these. Such families are likely to have been known to social services for months or, more often, years. The need for the social services to protect the children will have been properly met by non-court intervention somewhere on the ascending scale from simple monitoring, through categorizing the child as “a child in need”, on to the higher level of a formal child protection plan and up to looking after the child with the agreement of the parents under children act 1989, S 20.
In a way which is reassuringly replicated in the important recently published research of Isabel Trowler, to which I will turn shortly, I have for some time described these lower level neglect cases, which have hitherto been maintained on the social services files but away from court proceedings, as “grey area” cases, being cases which might or might not warrant formal court intervention at any particular stage. This categorization is in contrast to the higher end, if we are using colours, “blue flashing light” cases which plainly must come to court and always have done.
Looking at the situation in this general high-level, but, I hope, not too simplistic, way: some thing or things have happened to cause local authorities across England and Wales to bring a higher number of these “grey area” neglect cases to the courts on an application for a care or supervision order.
The important work of the FRG review identified a wide range of possible factors which might, in varying degrees, explain this rise in numbers. The situation is, however, complicated by the fact that different local authorities, which might, on paper, appear to have similar populations in terms of size, resources and social economic makeup, have behaved in different ways. One such authority might, in keeping with the overall trend, have increased the number of care applications that it makes, whereas another has not seen any rise at all.
A further interesting, and potentially complicating factor is that in certain parts of the country, almost at the same time as the rise in applications for care orders has taken place, there has been a similar rise of 25% in final court orders at the end of care proceedings which see the child going home to the parents but under a full care order or a supervision order. There has also been a rise in the number of cases where a child is placed with a friend or relative under a special guardianship order. The increase in the making of these forms of order, which fall short of the more draconian long-term orders placing a child in the care of the local authority away from home or, authorizing the child replaced for adoption, are themselves not uniformly distributed around the country.
The FRG report, which set out some 20 “options for change”, justifies being read in full by each member of this audience. In the broadest summary terms, the review identified a wide range of factors which might, to varying degrees and in differing circumstances, influence a local authority to decide to issue care proceedings. Some of these factors were said to relate to fundamental aspects of the current social and economic situation. For example, “austerity” cuts were understood to have reduced the resources available to a social worker seeking to support a family in the community. The more limited availability of resources such as “Sure Start”, or, more simply, funds to pay a social work assistant to visit a family once or twice a week, were said to have reduced the options available to social workers, thereby making it more likely that the option of issuing care proceedings, which of course is always there, would be chosen. In addition, the introduction of Universal Credit and the Housing Benefit cap were also said to have reduced the resources available to parents and the wider family where a child is in need.
To have these high-end societal factors identified was important, but in terms of what we in the Family Justice system might do to address the rise in case-load; if such factors are relevant, and as a judge it is not for me to say, they are certainly beyond, well beyond, our control. A different theme identified by the FRG review was a perceived departure in recent years, both in terms of government guidance and social work practice, from a key aspiration of the Children Act 1989 which was that social services would work in ‘partnership’ with families in order to meet the needs of children. Again, if that is so, it is a matter that requires addressing elsewhere and by others.
Focus on Pre-Proceedings
Over the course of recent weeks, as I have moved from court to court, I have become increasingly clear that the area which would most fruitfully benefit from close consideration by me, as President, is that relating to the pre-proceedings period where, in the days, weeks or even months before, on a particular day, a public law application under CA 1989, s 31 is issued by a local authority, the decision to do so is made.
When referring to pre-proceedings I have two distinct periods, or stages in the development of a case, in mind. Firstly, in non-urgent cases which have been known to the social services for a period of time, there must be a period during which increased focus is brought to bear on a particular child’s welfare as a result of developing concern. In the cases that come to court, at some stage in this period a decision to issue court proceedings must, obviously, be made. If, as I suggest it should be, the aim is that only the cases that need to be so are the subject of care proceedings, then it must be important that the decision-maker in the local authority makes his or her decision on the basis of up-to-date, good quality, information, assessment and professional opinion. In order to differentiate this aspect from the second, more formal, stage, I would label this as the “internal pre-proceedings process”.
The second distinct stage is the pre-proceedings element of the Public Law Outline [“PLO”], as set out in Family Procedure Rules, Practice Direction 12A. The PD 12A process involves the preparation of court documents and the sending of a “letter before proceedings” to each parent. The sending of the letter, in turn, triggers a very small amount of legal aid which will enable the parent to obtain limited legal advice prior to attending a meeting with social workers. The PLO pre-proceedings process is designed to deliver a “wake-up call” to parents, who, with the assistance of limited advice, may take steps to avoid the issue of the proceedings that the social workers are otherwise contemplating.
At this preliminary stage of my developing understanding, I have learned sufficient to be concerned that in some local authority areas and/or in some cases either or both of these two stages are not being undertaken thoroughly and effectively. The result of a failure of eithers is likely to be the issuing of care proceedings at a time when either the case does not have a sound basis in up-to-date evidence, assessment and professional opinion, or the opportunity to divert a family away from the issue of proceedings has not been adequately provided by a failure in the PLO pre-proceedings process.
Where there has been such a failure, it would seem that at least two negative consequences may flow. Firstly, that a case which is not properly formulated and focused arrives in court, thereby requiring the court, and CAFCASS, to spend unnecessary time in unpacking the issues in order to identify those which need to be prioritized in the court proceedings. Where such an application, as it not infrequently does, is accompanied by an “urgent” application to remove the child immediately from the family under an interim care order, the consequences for the court process in getting to grips with an ill-prepared case at no notice is clear.
Secondly, it may be the case that a child’s circumstances are brought before the Family Court in care proceedings when there was no need to do so, or no need to do so at that stage.
In the past few weeks my confidence in developing these preliminary thoughts has been significantly encouraged by the publication of a research-based policy briefing by Isabelle Trowler, whose report, which was published by Sheffield University earlier this month is entitled “Care Proceedings in England: the case for clear blue water”4. The opening paragraph identifies the papers focus:
“Over the last 10 years in England, there has been a significant increase in the number of families brought in to public care proceedings because of concerns about the care and protection of their children. 20% of those children return home on supervision orders.”
The briefing paper uses colours to make its essential point which is that …
“Families subject to thin, red line decisions, where the decision to remove a child from his or her parents could go either way, should be diverted away from court. There should be clear blue water between children brought into care proceedings and other children considered to be at risk of significant harm.
Stronger family focused practice, better decision-making and more sophisticated and tailored support services, should create clear blue water between the standard of care and protection given to a child involved in public court proceedings compared to the care and protection of other local children considered to be at risk of significant harm.
The legal principle of ‘no order’ should be more readily applied in practice. The use of voluntary accommodation should be reclaimed as a legitimate and respected support service to families for the long-term care of children. Shared care should be developed and incentivised, so that where safety allows, parents and extended family in partnership with the state, are fully supported to look after children within their own family networks.
Great care must be taken not to undermine progress in child protection practice. Where permanence for children can clearly not be secured within family networks, swift and skillful practice must lead to court action without delay.”
Isabelle Trowler’s policy briefing highlights the findings from an exploratory study of care proceedings in four English local authorities. The paper states “the study found that the vast majority of decisions taken to initiate care proceedings were certainly reasonable. The question is whether or not they will always necessary.” [emphasis in original]
The Trowler paper draws attention to the increased number of cases which result in a child going home at the end of the court process, either under a care order or a supervision order, and to a further cohort of children who are placed with other family members. The paper therefore questions whether “families subject to these thin, red line decisions, because the decision to remove a child from his or her parents could go either way, should be diverted away from court in the first place.”
Isabelle Trowler’s paper draws attention to the pre-proceedings period as one in which the social work focus should be upon trying to prevent care proceedings. The paper records, however, that this primary focus has become “somewhat lost and it [the pre-proceedings stage] is now used as a process primarily to prepare for court proceedings” thereby leading to the stated conclusion that:
“the pre-proceedings period should be resurrected as the key point of hope at which local authorities can work with (extended) families to develop long-term, sustainable plans for the children of concern. Particularly in circumstances where the decision to go to court would be crossing the thin red line, every effort should be made to avoid the truly burdensome and costly action of initiating court proceedings.” [emphasis in original]
I have spent some time drawing attention to Isabelle Trowler’s paper because, as I have explained, it has readily chimed with my own developing thoughts. I hope that by doing so I will stimulate debate both at this conference and in the wider family justice community on the question of whether the pre-proceedings process, in each of the two aspects that I have described, should now be revisited to ensure that only those cases which need to come to court are made the subject of a public law application and that when they do so that application is supported by a thorough and up-to-date professional analysis.
Finally, in this context, if pre-proceedings practice is to be looked at again, particular consideration should be given to two elements. Firstly, whether and to what extent CAFCASS should be involved pre-proceedings so that the voice of the child, and the likely view of CAFCASS if proceedings are issued, are heard at that stage. Secondly, whether the current provision of legal aid for parents at this most important stage should be increased.
An adverse impact of the 26-week deadline?
Having focused on pre-proceedings, I now turn my attention to the other end of the court process, namely the making of final orders. At the same time as there has been a rise in the number of care cases, there has also been a rise of similar proportions in the number of children being sent back home to their parents at the conclusion of the case either under a full care order or a supervision order. Whether these two changes have occurred together by coincidence or are, in some way, linked is still an open question. A further contemporaneous development is that an increasing number of children are now made the subject of Special Guardianship Orders in favour of family members or close friends. Anecdotal accounts are given that in some cases these orders, either for rehabilitation home or for Special Guardianship, may be made at a very early stage in the child’s return or placement with the proposed guardians. Again anecdotally, accounts are given of a relatively high incidence of
breakdown in these arrangements with the result that the case comes back to court and starts again as a fresh application. There is plainly a need for further work to be done to understand both the trend towards the rehabilitation of children at home under care orders, which varies as an outcome radically across the country, and the trend towards greater use of special guardianship. However, in the spirit of publicly sharing my preliminary thoughts at this stage, I wonder whether these developments may indicate that the 26-week deadline, as set by statute in CA 1989, s 32(1)(a), is, in this respect, generating an undesirable consequence. In many cases, the making of a final order at, or even well before, 26 weeks will be unremarkable and in the best interests of the child. Where, however, the child is to be rehabilitated home, or placed with relatives or friends with whom he or she has not previously lived, the child’s welfare may justify a further period of oversight by the court, within the ongoing care proceedings, rather than the making of a final order simply because, as it were, “the music has stopped” with the expiration of the 26th week. The 26-week long-stop within which care proceedings must be concluded is not absolute. CA 1989, s 32(5) provides as follows:
“A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.”
This is, I repeat, no more than a preliminary thought, but I would welcome debate in the coming months over this issue and, in particular, whether, in cases where the child is to go back home or to be placed with new kinship carers, the potential for an extension under s 32(5) might be more widely used.
Of course, at present, every care case that is proceeding in a care centre is measured against the 26-week deadline. Thus, if time is extended under s 32(5) an extended case will continue to be measured as part of the overall cohort and thereby run the potential of dragging the court centre’s total outside the statistical 26-week target. In such cases, I wonder whether, provided the use of the exception to extend the proceedings is operated cautiously by the judges, the collection of statistics might make an exception for this relatively small group of cases so that, once taken out of the statutory timeframe, they are no longer counted as being within it.
Care proceedings in the first week of life
A final topic that I wish to flag up for discussion over the coming months concerns care applications for new-born babies. Whilst this does not arise under the ‘Crisis’ heading, it is a matter that has been raised with me a number of times in recent weeks as being a category of case which places a significant and unexpected pressure on the court, which has to accommodate any such application on an urgent and unplanned basis.
As the recently published research “Born into Care” by the Nuffield Family Justice Observatory has established, the percentage of care cases involving new-born babies (that is a baby under 1 week old) has increased by about one third in the past 9 years5. The research, which was led by Professor Karen Broadhurst, and was based on data from CAFCASS, recorded that the number of new-born cases rose from 1,039 in 2007/08 to 2,447 in 2016/17. The likelihood of new-borns in the general population becoming subject to care proceedings has more than doubled, increasing from 15 new-borns per 10,000 live births in the general population in 2008 to 35 per 10,000 in 2016.
Although, of course, on some occasions the need to protect a baby by removing them soon after birth only becomes apparent to the social services at the time the baby is born, the vast majority of such cases involve the birth of a further child to a mother whose circumstances are already well known to the authorities. Proceedings in relation to a child cannot be commenced until he or she has been born. “A child” is defined by CA 1989, S105 (1) as “a person under the age of 18”. Thus, whilst the pre-proceedings process may, and no doubt should, be undertaken some weeks prior to the expected birth, currently, there can be no direct engagement with the Family Court until the baby has become “a person”.
Irrespective of any practical difficulties that may arise in terms of listing and then conducting a court hearing during the first few days of a child’s life, there are, I believe, important principles of fairness and, frankly, humanity which may indicate that, in some cases, it would be in the interests of all concerned if some form of pre-birth court process could be undertaken.
Under the law as it was prior to the implementation of the children act, it was not unusual for the High Court, exercising its wardship jurisdiction, to conduct proceedings and make prospective orders in relation to a child who was yet to be born. Given the number of such cases which are now coming before the Family Court, and in the light of the real difficulties which some of these cases can generate, I wonder whether the time has come to consider some amendment to the statutory scheme to allow for the exercise of a prospective pre-birth jurisdiction in appropriate cases.
Before closing, I will, if I may, say a word about ‘private law’ before drawing together what I have been saying in a few words.
Private Law
I have seen sufficient to conclude that the private law programme introduced after the Family Justice Review is not working. There are far too many parents coming to the court when they have no need to do so and, in reality, the court is not the best place to resolve their disputes. In terms of the challenge to the overall system arising from increased workload, I see private law as the area where it may be possible to achieve a very significant reduction in numbers. This will involve substantial change, not only to our working practices, but also, I believe to the public perception and expectation of what a court can, and more importantly what it cannot, do to resolve parental conflict. This is work in progress and it is the topic that I shall turn to in detail in my lecture to the Resolution Annual Conference on 5th April (and no doubt at each of my court visits and other occasions).
Summary
Whilst the use of the word ‘crisis’ was fully justified in drawing attention to the developing situation in 2016, at a time when we did not understand what was occurring or why, that word is no longer apt as there is now a fairly clear and developing understanding of these matters and a set of strategies that are being developed to address the pressures in the system. In terms of the title of your conference I would therefore suggest ‘“Crisis” NOT “Crisis”’. In future I intend to use the phrase ‘workload challenge’ to refer to the acute difficulties that we are all currently facing. In terms of what we understand and the focus of work to address the Workload Challenge, it seems clear that the number of children across the child care system has simply gone up by an order of 25% in the past 2 or 3 years; the water table has simply risen. This rise may be as a result of major factors in the current societal and economic situation; if so, such factors are well outside the control of social workers, lawyers, judges and courts. An area that is within the knowledge and control of local authorities and the courts is the process undertaken in the months, weeks and days before an care application is issued. It is this area which I believe is ripe for attention with the aim of either diverting some cases away from court or, at least, ensuring those cases that come to court are, as it were, ‘match-fit’ for engagement in the court process at Day One.
The developing practice, in some areas, of sending children home under a care order at the end of proceedings, and, separately, making Special Guardianship orders to those with whom the child does not yet have a firm relationship, also justifies detailed consideration, both in terms of its impact on case numbers (where such arrangements break down and lead to fresh court proceedings) but, in terms whether the 26 week deadline may, in some cases, be having an adverse impact.
Separately, but by no means irrelevant to the workload pressure on the system, there is a need to consider whether there is a better way, and a better time, for the court to take in and determine issues relating to new-born babies.
Finally, and this may be a major factor in addressing the workload challenge, substantial changes need to be considered to the court process when dealing with disputes between parents about the arrangements for their children. In addition, and more generally, there is a pressing need to manage the expectations of separating parents, at the earliest stage, as to what going to court involves and what a court can, and cannot, do in such cases.
This is, in short, a busy time and there is much for all involved in the Family Justice system to consider and discuss during this conference and, more widely, in months to come!
Concluding remark
In conclusion, having rehearsed a whole range of difficulties before you this morning, I would like to end by expressing my appreciation for the continuing fortitude and sustained endeavour of each ALC member, and of family lawyers in general. Whilst I am, as I have explained, concerned for your individual and collective well-being in these challenging times, I remain very proud to have been one of your number in times gone by and I continue to be extremely impressed by the quality of your work and the dedication that you demonstrate to the vocation of being “a lawyer for children”.
