Two important resources for family court users and professionals were published at the end of November: a webinar to ‘Refocus on the Public Law Outline (PLO)’ and a Family Court Annual Report that covers the year 2023-2024 – although it’s the first annual report on the Family Court to be published in ten years – following a proposal for such reports made in the President’s Transparency Review published in October 2021.
First, the Refocus on the PLO – the recorded presentations and slides are here. You need to scroll down the page to find them.
On 26 November, an online webinar was held (and apparently attended by hundreds of viewers) to bring attention once again to the aim of the PLO to enable care proceedings to be completed within 26 weeks. This time limit was originally suggested by the Norgrove Family Justice Review in 2011 and implemented in the Children and Families Act in 2014. Average case duration had been falling until the pandemic; the President announced a Relaunch of the PLO in January 2023 to restate the PLO principles. We’d written here about the foggy picture as to whether case duration started to fall after that. The Annual Report does indicate a slight shift between 34% of cases completed within 26 weeks in 2020 and 29% in 2023, although the median average duration went up from 32 weeks to 36 weeks. In the webinar, the President talks about an improvement in 2023 but some recent ‘backsliding’. He said that the most recent figures showed a national average of 41 weeks but 58 weeks in London.
The chair of the Public Law Working Group, Mr Justice Keehan, gave a presentation on ten key points:
- Pre-proceedings assessments are generally not to be repeated during the court application.
- Local authorities are expected to file their evidence promptly after submitting an application, normally within two weeks.
- It’s essential that any realistic proposals for kinship placements are identified pre proceedings and considered at the first case management hearing (CMH).
- There are too many ‘urgent’ applications – in the sense of the LA requiring authorisation for removal of a child under an interim care order (ICO). Apparently 65% of ICO applications are ‘urgent’.
- Every hearing should be effectively case managed by the judge, dealing with cases expeditiously, fairly and proportionally, and with a view to allocation of resources.
- ‘Nothing else will do’ (the mantra that emerged in case law in 2013) is not an excuse for delay in planning.
- Part 25 applications for expert witnesses must be made before the first CMH and must be shown to be necessary. On this point, Keehan J added that appointing an intermediary must only be made when necessary and commented that since guidance issued by Mrs Justice Lieven and others, the number of intermediaries appointed has greatly reduced, saving HMCTS a lot of money. As we wrote here the status of this ‘guidance’ has been questioned; my understanding had been that it aimed to save time rather than money.
- An issues resolution hearing (IRH) is not a prelude to a final hearing, but should aim to finalise the proceedings.
- Judges need to ensure compliance by all parties with time limits set by the court for filing evidence etc.
- The number of hearings should not exceed two or three. Many (or possibly most) care cases now have six hearings.
The final presentation was given by Helen Lincoln, the Director of Children’s Services for Essex and Chair of the Association of Directors of Children’s Services (ADCS for England) Families, Communities & Young People Policy Committee. Ms Lincoln was positive about the scope for the PLO to encourage earlier working with families. She said that most social work was concerned with neglect and emotional abuse rather than physical or sexual abuse, but she briefly referred to increasing complexity in safeguarding children where there are international issues or associated criminal activity.
Apart from Keehan J’s reference to appointing Part 25 experts and Helen Lincoln’s reminder that some cases are complex, I was left with the impression that this webinar and indeed the whole PLO Refocus was based more on a need to expedite care plans for children who have been left too long with parents who can’t cope, rather than on legal issues that fall to a court to be determined. Of course, the possibility of a child and parent being separated by State intervention raises human rights issues and the Children Act 1989 did away with that being acceptable through a purely administrative system. However, I wondered if some lawyers and social workers on the front line may have found the limits set out in Keehan J’s ten points too mechanistic to apply in the day to day reality of working with a range of families.
It’s now 35 years since the Children Act 1989 captured the principle that delay in resolving court proceedings is not in children’s welfare, but as the President observed from Helen Lincoln’s presentation, care proceedings are only one stage in an ongoing relationship between families and services. However, we have a system where many children’s futures are on hold pending completion of a court process (that’s my comment, not Sir Andrew’s).
The Family Court Annual Report
Speaking of the Children Act 1989, there used to be regular reports on the family justice system in the context of the Act coming into force in the early 1990s. Although the Family Court (bringing county court and magistrates courts family proceedings together) was established in April 2014, it wasn’t until the President’s Transparency Review (October 2021) that the importance of regular reporting and review was again suggested. The Review says this about data collection and an annual report:
The lack of judgments being published and the lack of consistent data on the operation of the Family justice system means that it is hard to conduct any evidence based assessments of what we do. This cannot be good for the outcomes for children going through the system. I am therefore going to propose a scheme of compulsory data collection at the end of each case. This can be done as a web-based tool which I hope that the TIG together with HMCTS can devise and trial. I am convinced that better data collection could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes. In the slightly longer term there is a need to move towards data collection on what happens to children after the final orders are made.
A further avenue by which the Family Court can be more open about its work is for the public to have access to an annual report of its operation, which would include data setting out case numbers, categories of proceedings and outcomes. The report would also include an annual audit on the progress of the various initiatives that are now to be launched under the overall umbrella of ‘transparency’.
As has been discovered by the scoping study by NatCen on the availability of data from the courts, we are still a long way from ‘better’ or ‘transformational’ data collection and there is no one who has responsibility for developing a strategy on this.
However, the new Annual Report does publish information on case numbers, very broad categories (private and public) and outcomes to the limited extent of how long the cases took. It also reports on progress of the transparency initiatives. On data collection itself, the Report says:
The [NatCen] report concluded that current practice means that there are very limited options for identifying the answers to the questions posed in the areas identified. For instance, there is an absence of data or statistics on the support provided to families before they enter court proceedings or what happens to them afterwards. The report points to three practical reasons that many of the questions cannot be answered: data is not captured, data is captured in a way that is not accessible or there is a lack of routine and timely data linkage to other sources.
It’s therefore unsurprising that the Annual Report is a bit thin. There isn’t a Contents list , so here are the headings:
- Foreword
- The Family Court
- Children Public law
- Public Law Working Group
- Children Private Law
- Pathfinder courts pilot
- International Child Abduction
- Divorce and dissolution
- Financial Remedies
- Transparency
- Family Justice Council
- Family Procedure Rule Committee
I’ve mentioned some public law stats above. Median case duration in private law in 2023 was 30.3 weeks, a substantial and steady increase from 19.7 weeks in 2018. There’s no analysis attempted of the causes of the increase although it seems to be assumed to be down to volume of applications. This is speculation, but I would guess the current backlogs and demands on courts in general lead to inter-parental family court disputes having low priority and being allowed to mount up – although this situation seems desperate to the judges, magistrates, lawyers and social workers in the family justice system as well as to the families.
Image: Delay pedal – Wikimedia Commons