I went to Cardiff Family Court as a legal blogger in two care cases this week. Reporting on them might give an inkling into how the most recent ‘refocus’ on the Public Law Outline (PLO) 26 weeks time limit is working out in the real world. We wrote about the refocus in November last year here. when the President emphasised that most care cases should consist of two or possibly three hearings only, within 26 weeks, and should aim to complete at the Issues Resolution Hearing (IRH), when the judge would be fully prepared, with all the evidence before her/him, to make final decisions in the child’s welfare.
In his most recently published ‘View’, the President says real progress is being made, with MoJ data showing that 37% of public law cases were concluded within 26 weeks in the last quarter of 2024, the highest figure since before the pandemic. However the ‘picture is not so rosy’ in London, as I’ll come back to later in this post.
Bit of background – the 26 weeks time limit was introduced by the Children and Families Act 2014, after many years of dissatisfaction about the variations amongst courts as to what was acceptable in terms of delay, in the context of the Children Act 1989 telling us that delay is bad for children’s welfare. It’s now inserted as section 32 in the Children Act 1989. Early hearings in public law are called Case Management Hearings (CMH) which organise the evidence and schedule an Issues Resolution Hearing (IRH) within 26 weeks. Originally, a Final Hearing was also to be scheduled well in advance, but now a Final Hearing, if required, will only be listed at a IRH.
Legal blogging at Cardiff
I selected two half-day hearings to attend from Courtserve: one looked like a CMH early in proceedings and the other was a IRH listed for two hours, so a good contender for final resolution. I’d heard anecdotally that (as the senior judiciary expect to happen) many cases do now conclude at IRH rather than having to be scheduled to do so at a Final Hearing.
The judge in each case I attended made sure we all got a draft transparency order (TO) by the start of the hearing and there were no objections to my presence or reporting. Each TO helpfully allowed me to report on the hearings after they ended – reporting wasn’t postponed until the end of the whole case. However, as explained below, final decisions in each case aren’t likely to happen before August, so my reporting is limited at this stage.
The CMH – a large group of children suffering from chronic neglect (we’re in Week 4 of the theoretical 26)
The judge ensured I had a copy of the local authority (LA) case summary and also asked the barrister for the LA to start with a brief overview, for my benefit. The care applications had been made at the end of March for all the children in a large family. This was the first CMH. The children are still living at home under a stringent Safety Plan with daily visits by social workers and the LA wanted interim care orders (ICOs) made, although the children weren’t being removed (at that time). The ICOs were agreed by the parents and the Cafcass Guardian.
The LA had been involved with the family – off and on – for the whole of the children’s lives.. The case summary described four different periods of LA intervention and support over the years. Matters seemed to have improved in 2022 but last summer, on an occasion when the children were found alone in the house, the home conditions were so bad that the police had to use their protective powers under section 44 Children Act 1989 to take all the children out and place them temporarily with relatives. Concerns escalated until August and parental assessments ‘concluded negatively’ (in the words of the case summary) but applications to court weren’t made until March this year. There’s a long list of issues set out as the threshold for proving the children are suffering significant harm, primarily unsanitary conditions and general lack of health care.
The Guardian and the judge both expressed some concern about the fact that the LA hadn’t issued proceedings back in August. I think this may have happened because the parents had split up for a period, got back together, and there was an added complication of the older children having a different father. So I’m sympathetic to the LA trying to keep up with the family dynamics.
In any event, no-one was hanging around now! A timetable for additional parenting assessments was set out, and deadlines agreed for disclosure of police and medical records, and reports from health and education services on all the children. There would be an assessment of sibling attachment. Drug and alcohol testing for the parents was to be arranged. A viability assessment had started with a paternal aunt of the older children who had been put forward as a potential alternative carer for them. All this evidence should all be available by mid July and the LA was to file its final evidence by the end of July. The Guardian agreed to an abridged period for her final report. This took the proceedings to an IRH in mid August (Week 19). At the end of the hearing, the judge addressed the parents directly, emphasisng that they must adhere to the safety plan – or the LA would bring the case back to court – and that it was of the utmost importance that they now openly assist the LA who now share parental responsibility.
The barrister for the children had described the placement with parents as ‘on a knife edge’ and the judge advised them to read the Guardian’s report carefully. The decision of the court, made in quite an intense hearing of less than an hour, was that it was proportionate and appropriate to make the ICOs by consent.
The IRH – an abandoned baby with an unexpected opportunity of a family placement (we’re in Week 20)
This case is very different. It involves a baby born late last year who was subject to a care application heard just a few days after she was born. Despite a lot of efforts by the LA and the lawyers for the baby’s mother in trying to work with her, she hadn’t responded to either for some months, had not agreed to be assessed, nor submitted any evidence. A formal process had ensured that she was aware of the date of the IRH but she had still not been in touch with her lawyers who’d also tried to ring her twice that day. The putative father had refused to take a DNA test to see if he was in fact the biological father and he’d not taken any part in the proceedings. (A ‘putative father’ is an old-fashioned but still used term for a man who is alleged to be a child’s father.)
The district judge in this case was, I think, expecting the IRH to finalise proceedings as it had been listed for two hours. However there’d been a disruption to the LA plans (placement for adoption) because just a few days earlier it had emerged that the alleged father has a sister who is a potential carer and may want to be assessed. DNA test results were awaited to see if the baby and this possible aunt were in fact related.
The LA was therefore saying they needed more time to update their plans – because a full assessment of the aunt as a possible kinship carer or special guardian would take some weeks. However the judge was worried that the 26 weeks was up in early June, and the LA were asking for an extra ten weeks that would delay an IRH until well past that date. Under section 38 (5) Children Act 1989, an extension beyond 26 weeks can only be allowed ‘if the court considers that the extension is necessary to enable the court to resolve the proceedings justly’. He enquired of the lawyer for the child why the Cafcass Guardian wasn’t calling for the LA to assess the aunt more quickly but the Guardian was of the view that the assessment needed to be very thorough and sensitive to the situation in which the aunt had unexpectedly found herself. The child’s lawyer raised the risk that, if the possibility of the baby being placed within the birth family was overlooked at this stage, this may be questioned later in relation to placement for adoption.
The judge called the LA application ‘a Re S application’ citing the authority from ten years ago, Re S (A Child) [2014] EWCC B44 (Fam) when Sir James Munby had set out at para 33:
To paraphrase, these were first, heavy cases involving e.g. complex medical evidence or international law; second, where an unforeseen development derails the process e.g a realistic alternative family carer emerges late in the day; and third, litigation failure by one of the parties that meant a fair outcome required more time.
The Cardiff judge considered the balance between the baby’s need for a permanence decision without delay and the opportunity that she may now have of growing up in her birth family. He made to clear that he had asked questions about the delay, but eventually accepted the LA arguments as reinforced by the Guardian and made the order requested. The case will return to court in early August. There is an alternative shorter timetable, should the DNA results come back negative.
The necessity for an extension beyond 26 weeks
I had almost forgotten about Re S and I wondered if it is cited in all the cases that go over 26 weeks, especially in London. According to the President’s April ‘View’, proceedings are still taking longer there than elsewhere, despite the London Practice Note issued in November. In autumn, the President had quoted an average national timespan of 41 weeks but 58 weeks in London. He doesn’t quote exact figures this time so I had a look at the MoJ statistics; these say that in October-December 2024 the national average was 38 weeks. I can’t find separate local statistics, but they may be there somewhere.
The Re S judgment, and Sir James’ three criteria, are not mentioned at all in the local London Practice Note, nor can I find them in the Family Procedure Rules. So I am a little curious as to whether different reasons for ‘necessary’ extensions are given in different places. It’s interesting to note that the more recent comments from the senior judiciary about London seem to have moved on from strong words about local authority practice to conceding that there just aren’t enough judges. In his ‘View’, the President says ‘I continue to push for the recruitment of the full complement of CJs and DJs [circuit and district judges] for London and the South East’. Perhaps if extensions beyond 26 weeks are just built in to London cases, no one needs to apply for them. Systemic ‘litigation failure’ wasn’t what Sir James Munby had in mind as his third category in Re S.
In conclusion however, these two hearings in Cardiff suggest that the President’s ‘refocus’ on avoiding delay is being taken literally in locations where 26 weeks is still feasible and, although in very different circumstances, all the judges and professionals involved were alert to the alternative prospects of more urgent actions having to be taken in the children’s welfare.
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