Time limit for care cases ‘impractical’
Family law groups have warned that the government's plan to impose a 26-week time limit for courts to conclude care cases is impractical in most cases and constitutes ‘potentially unlawful interference with judicial discretion’.
Giving evidence to the justice committee, the Law Society, Family Law Bar Association (FLBA) and Association of Lawyers for Children accepted that unnecessary delay is harmful to children, but opposed the setting of an arbitrary time limit.
Co-chair of the Law Society’s family law committee, Naomi Angell, said 26 weeks is ‘inadequate’ for most cases.
In written evidence to the committee the Society said: ‘Care proceeding cases are often complex, dealing with vulnerable children and parents, requiring concomitant assessments and sometimes running in parallel with concurrent criminal proceedings.’
It added: ‘Cases involving complex fact-finding, those involving large families or absent family members, or where a child has complex medical needs, such as a disability, will rarely be resolved in under 26 weeks.’
The judge in charge of modernising the family justice system, Mr Justice Ryder, told the NAGALRO conference last month that data being collected from the courts shows that the 26-week timetable is only achievable in about 30% of cases.
Angell told the committee that the focus had to be on setting a timetable that is appropriate for the individual child concerned and their circumstances.
The proposed legislation allows for extensions of up to eight weeks in exceptional circumstances. Angell warned that a failure to provide guidance to ensure consistent application of judicial discretion could lead to satellite litigation.
Jane Bazely QC, from the FLBA, warned that the need to come back to court every eight weeks to seek an extension would increase delays and the burden on the judiciary.
She stressed that if one could not ensure judicial continuity at each hearing, there was a risk that wrong decisions would be made.
Bazely said further delays would result from the fact that, due to the deadline, cases could not be listed beyond 26 weeks. So, if a case goes beyond that time it effectively loses its place in the queue.
In written evidence to the committee, the FLBA identified 19 factors that created delay in the system and said that the proposed time limit is ‘not a magic bullet’.
It warned that the system is ‘already in crisis’ and that if the limit is implemented without the causes of those delays being addressed, judges will have to make decisions on the basis of incomplete or inaccurate information.
Bazely told the committee that delay could be ‘purposeful and necessary to ensure a just and fair process’ in cases where, for example, specialist expert reports were required or where parties had learning difficulties.
Those who find themselves facing care proceedings, said the FLBA, require ‘actual justice as opposed to quick justice’.
Co-chair of the Association of Lawyers for Children, Martha Cover, told the justice committee it is fine to have a target, but the 26-week time limit could not be a deadline.
To do so, she said would be a ‘potentially unlawful interference with judicial discretion and the rights of the children and parents to a fair trial’.
Cover was also concerned that the language used in the draft legislation in relation to extending the 26-week timeframe undermined the principle that the welfare of the child is paramount.
She said courts are only required to ‘have regard to’ the welfare of the child and need only extend the time limit if it considers this necessary to resolve the proceedings ‘justly’.
Cover told the Gazette: ‘The word “justly” goes back to the overriding objective in the family procedure rules, which is concerned with saving time and money.
‘It drives a coach and horses through the paramountcy of welfare.’
Comments
Time Limit for Care Cases
The negative comments from family law groups regarding the 26 week limit are entirely predictable and very sad. The Law in this area lets children down by delay. This has gone on, and got worse, for decades. Don't these people care? Letting down children must be about the worse thing you can do. These vulnerable people need an iron determination to look after them properly, which has been completely lacking. For judges to go home at night having made orders leading to children being in limbo for many months is disgraceful. A child's whole future can be damaged by delay. How can they do it? A good judge would revolt against the "care professionals" in social services and elsewhere who plead overwork, and lack of resources. Children should be the absolute priority, not the nine to five mentality that I witnessed for so many years from everyone involved. These proposals deserve the strongest support from the legal profession. The Courts should never delay any child's hearing due to pressure on the List.
The truth is that 26 weeks is itself far too long to process these cases.
Time limit and care cases
While there are areas that can be speeded up eg getting instructions to experts faster so work can begin in a timely fashion, I agree that 6 months can be too little in complex cases. Sometimes there needs to be a period while children settle down in foster care for instance before major decisions are made such as whether children can be placed as a sibling group or whether their indivudual needs are too great for this. Sometimes extended work needs to be done with parents at their own slow pace to enable change to occur for instance. There are many complex issues and imposing a blanket 6 month deadline is not always in the child's best interests.
Time limit for care cases
It is wrong for commentators to suggest that those who have worked for many years in the demanding and financially unrewarding world of child care law don’t care. In fact we see first hand the distress of children.
Many politicians and apparently some lawyers still retain a view of proceedings as analogous to criminal proceedings where the only real issue is to determine a factual matter, such as did a person commit a crime, and then deal with the consequences. In those circumstances, the quick disposal of the case is obviously a good thing.
Some people do not seem to appreciate that care proceedings are entirely different. In most cases, the question is whether parents are good enough at the outset of proceedings and whether they can be enabled or induced to be good enough during the course of proceedings.
Cases take more than 26 weeks if they are going to give parents the genuine opportunity of changing, which of course means giving children the genuine opportunity of remaining within their original family. In addition, cases take more than 26 weeks because of the need for a thorough exploration of the wider family once it has become clear that the parents are failing.
To impose a 26 week deadline is to destroy both these opportunities for a child to remain within their family. Is that in their interests?
26 weeks is suitable for those cases in which it is clear that the parents are going to fail and there are no alternative carers within the family, possibly because both these things are clear from recent exhaustive enquiries for other children. Another small percentage of cases are suitable because it is quickly clear that the Local Authority should never have brought the case for lack of merit. Perhaps these two categories comprise 20% of cases. In which case 80% of cases are ones in which due process and careful scrutiny is entirely appropriate and should be the right of each child.
The logic of the government seems to be simplistically that children should be adopted as soon as possible. This ignores the fact that the supply of adopters is already diminishing and will hugely diminish when, probably within ten years, advances in assisted reproduction finally abolishes parental infertility problems. Children will in fact be in long term foster care for decades with very negative consequences for them and massive ongoing costs to Local Authorities.
Parents currently display an astonishing level of acceptance of the trauma of the loss of their children. I suggest that this is because they can see that the issues have been fully explored inside and outside the courtroom and that at some level they accept the legitimacy of the decision.
When justice is not done and is perceived as not having been done there is likely to be much more direct action by parents against social workers, the courts and against the foster carers or adopters who, in this electronic age, are increasingly easy to trace.
Crucially any such interference with children's placements is a certain way to reduce drastically the supply of those carers and adopters which is one of the main problems already facing us at this time. This would have huge consequences in terms of children’s welfare and Local Authority costs.
David Jockelson Miles and Partners LLP
Child care cases are
Child care cases are possiblity/probability cases, any so called proffessional can throw in any accussation they care to, without question whether a little human being could survive such trauma, all paid for by UK tax payers, as for finding immediate family members to care for children there are hundreds of unmentioned laws against family members being even contemplated to be carers never mind actually allowed to do so, If it were not so bias and illegal the law would make it easier for all these lost children to retrace their birth family, but it is not as you well know, Stop printing rot, the cases should be as quick as possible, the parents told they will never be allowed to parent a child again, unless they seperate and disappear as far away from the court and area as possible, but at the end of the day there is a higher judge whom we all face
26 week limit can sentence a child to a lifetime in care
I agree entirely with what David Jockelson has said above.
My court has in fact been trying to impose the 26 week time limit for some time.
I had a recent case where a mother had turned her life around but was supporting the placement of her children with grandmother. Grandmother dropped out late in the day, in other words when we were fast approaching the 26 week time limit. Mother naturally wanted to be assessed to see if she could care for the children. The Local Authority refused to assess her simply because of the time constraints and the court told me to put in an application on behalf of mother but warned me that it was unlikely to succeed because of the delay it would cause.
The plan for the children is adoption. Given their ages and the fact that there are two of them I wonder whether this will happen. How will they feel years down the line when they learn that they are in this position because the system would not allow a few more weeks for their mother to be assessed to care for them. That in fact the appropriate box was ticked and targets were met.
26 week limit
I am a solicitor who has re qualified in the United States. I have been fortunate enough to have been appointed as a judge in Connecticut and for the past three years have been assigned to juvenile court which includes child protection issues. Your correspondents have identified a conflict that is difficult to resolve.
It has been my experience that few parents with issues substantial enough to warrant governmental involvement can resolve them within six months. On the other hand I encounter cases where children are left in limbo far too long while social workers under a mandate to reunify give parents more and more chances to get their lives together. The U.S. federal government mandates that a petition to terminate the parents' rights be filed within fifteen months if the children are in non-relative foster care. For a child who has been with pre-adoptive foster parents since shortly after birth that is probably too long. For the older (and less adoptable) child who has a bond with his or her parents that may be too short. A blanket six months cut off point / one size fits all date doesn't -- and shouldn't --work for these difficult cases although a court supervised review of progress (or lack of it) every six months (rather than every year as in Connecticut ) has much to commend it.
This time limit has obviously
This time limit has obviously been determined by the amount of successful cases won by parents as oppossed to the unsuccessful cases (lost by the parents) the conclussion being court time wasted, it would be better for all to judge if the oppossers would state facts and figures on how many times/or percentage of cases actually end in the parents win against the once we have started we will finish state cases that they have handled