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Review of the Protocol

Date:31 JAN 2006

A Judicial Review Team (Munby, Coleridge and Ryder JJ), has given its first report on the Protocol for Judicial Case Management in Public Law Children Act Cases. As an instrument of judicial management, and as guidance relating to the making of judicial decisions, the terms of the Protocol are a matter for the judiciary. The review was started in January 2005 and reported in December, a period when several other relevant strategic papers were published.

The report concentrates on public law proceedings, but a keen eye was maintained on the advances presently being achieved in the determination of private law disputes consequent upon relationship breakdown.

The JRT recommends that the care centre plans and the Family Proceeding Courts plans that were a requirement of the Protocol, and the private law schemes that were a requirement of the Private Law Programme, should be brought together in the annual family court report. The JRT also recommended that transfers from the FPC should, where possible, be referred to the senior family legal adviser or a District Judge for determination so that all available judicial resources could be identified for the determination of the individual case. The JRT recommended that the judiciary be encouraged in the course of their case management, to excuse the children's guardian from hearings where there attendance was not necessary and where the child's solicitor was, in any event, fully appraised of all of the issues.

The JRT had submitted detailed proposals to the care proceedings review as follows:

1. A Pre-Proceedings Protocol - the re-introduction of a proposal made to the Lord Chancellor's Advisory Committee in 2002 to enhance existing guidance issued to local authorities under s 7 of the Local Authority Social Services Act 1970 by a detailed protocol or Practice Direction which describes best practice prior to an application being made with the intention of: a) avoiding proceedings in appropriate cases where issues can be resolved in an ADR environment; and b) concurrently with (a) preparing for proceedings by identifying key issues, goals and their components, to minimise delay and costs.

2. A Children's Dispute Resolution Appointment (CDRA) - the introduction of a judicially led initial stage to all care proceedings bringing together three concepts: a) early neutral evaluation; b)inter-disciplinary professional advice to the court on key issue identification, case management and assessment (itself mirroring recent proposals made by the Chief Executive of CAFCASS in the consultation document Every Day Matters); and c)case planning.

3. The Case Plan: the introduction of the concept of a case plan which describes in words which are comprehensible to the parties: a)the identified key issues; b)the goals that need to be achieved for the child to receive the standard of care that s/he needs; c) the components of the goals i.e. clear and unambiguous inter-disciplinary advice on the steps that are necessary to achieve the goals; d) a child centred timetable for the achievement of the goals and decisions in the proceedings; e) accountability for delivery of the plan and its parts; f) a mechanism for re-evaluation to take account of any changes of circumstance during the plan.

The JRT report states that it had been significantly assisted in its forward thinking by recent experience of the judiciary as advised by leading forensic experts, existing healthcare and social care research materials and the experience of healthcare professionals who used a model known as treatment evaluation for rehabilitative care. The model proposed would make provision for inter-disciplinary advice at the earliest stage of a referral and the construction of a written case plan that formed the basis either for agreements with families or for independent decision making, either of which could dramatically improve issue resolution, case management and timely decisionmaking. The medicalisation of proceedings would be replaced by an enhanced inter-disciplinary emphasis which would be more comprehensible to parents and children alike and adversarial disputes about key issues would be clarified, and where possible, minimised. The report concludes that very few recommendations touched upon the detail of the Protocol itself, partly because although much had been achieved from a standing start, there needed to be a period of consolidation, training and experience, before embarking upon further radical change in a field already over-populated with initiatives, consultations and change.

See March [2006] Fam Law 237 for the full news article including other recommendations by the JRT.

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