Radical changes to the way childcare cases are processed and how much they will cost could leave vulnerable children at risk, family law experts fear. Grania Langdon-Down reports.


A new initiative aimed at improving the way public law childcare cases are dealt with comes into being this month. Local authority lawyers and private practitioners are torn – they welcome its good points but fear it may leave some vulnerable children at risk.



Their concerns have been heightened by the government’s determination to connect the roll out of the Public Law Outline (PLO) with the introduction of full-cost pricing of care proceedings, which will require local authorities to pay up to £4,825 instead of £150 per case.



HM Courts Service announced only last week that the new fees, detailed under section 2.2 of the Family Proceedings Fees Order 2008 and section 10.2 of the Magistrates Court Fees Order 2008, will come into effect on 1 May 2008. The consultation, which closed on 11 March, prompted an outraged reaction from stakeholders.



Law Society President Andrew Holroyd says: ‘There was a lot at stake in this consultation, namely the rights of vulnerable children to access justice, so we are very disappointed that the government appears not to have considered our concerns on this matter, which are shared by the NSPCC. Nor have they looked at an alternative approach to avoid local authority decisions on taking care proceedings being unduly influenced by financial constraints.’



Given the PLO, the new court fees and the fixed fees for publicly funded care cases, private practitioners say they are ‘reeling’ from the changes.



While the government maintains it would ‘never do anything that would put vulnerable children at risk’, Christina Blacklaws, senior partner of London practice Blacklaws Davis and the childcare representative on the Law Society Council, says: ‘We had the best system in the world, which was the envy of colleagues abroad. I am not against change, but this triple whammy of the PLO, full court fees and fixed fees can’t be in the best interests of children.



‘The government is keen to make grand announcements about what it is doing for looked-after children. But this stands in stark contrast to what is happening on the ground in the care process.’



It was concern over the delays in public law Children Act cases, which take nearly a year in care centres and 44 weeks in family proceedings courts from application to disposal, that prompted family judges to draw up the PLO to replace the protocol for Judicial Case Management in Care Proceedings.



Uma Mehta, Islington Council’s chief community services lawyer, is chair of the Law Society’s children law sub-committee. She has written a Quick Guide to the PLO and been involved in providing multi-disciplinary training.



She says the key changes are that local authorities must now do far more work upfront, including residential and kinship assessments, before issuing proceedings. If the future care of the child cannot be resolved, the authority must issue a letter warning parents they are considering issuing proceedings. This triggers level two legal aid funding of £347, letting parents seek legal advice. If the problems remain unresolved the case will go to court, where proceedings have been reduced from six to four stages to focus on narrowing the issues in line with the timetable set for the child. Mehta says it is hoped that some cases will be fast-tracked and may be resolved within 20 weeks, compared with the former benchmark of 40 weeks.



The PLO has been tested in London, Liverpool, Portsmouth, Oxford/Milton Keynes, Birmingham, Leicester, Newcastle, Sunderland, Warrington, Chester, Swansea and Plymouth/Exeter. But local authority lawyers say the pilots have not been allowed to run long enough to see how the initiative works in practice. Mehta says Islington only found out in November 2007 that it would be one of the pilot authorities.



‘There are aspects to the PLO that are good,’ she says. ‘It is very important to reduce delays. However, it is a big burden for local authorities because it is so frontloaded, and there is no extra money coming in to support it. But, as long as the child is kept at the heart of the process and we can narrow the issues, it’s got to be good.’



One concern for practitioners is that the PLO has led to fewer proceedings being issued. In the Inner London Family Proceedings Court there were 423 care applications between September 2006 and February 2007, but only 282 between September 2007 and February 2008. ‘In one London borough, applications to court have gone down by 75%,’ says Blacklaws. ‘But you can’t tell me that there are either suddenly 75% fewer children who are being abused or neglected, or that the local authority has managed to change its practices so swiftly that these children can be left safely at home. It just doesn’t add up.



‘All you can conclude is that one of the worrying effects of the PLO is that children are being left in unsafe circumstances in cases which, prior to the PLO and all the hurdles the local authority has to jump through, would have been subject to court proceedings and, in that sense, safeguarded.’



The drop in proceedings may be a blip as local authorities get their acts together, she says. But the downturn in client numbers is ‘not being replaced with an equivalent number coming to us after the authority has issued one of the new letters before proceedings’.



Blacklaws and other practitioners are concerned that local authorities may be using section 20 powers to get parents to agree to their child being put into voluntary foster care rather than go through full court care proceedings. But, she says, this leaves parents without rights, the child without an independent advocate, and no court scrutiny.



‘There are some very good aspects to the PLO. But I feel that in some cases we are going back 20 years to pre-Children Act days, when much of child protection was an administrative process between the local authority and extremely vulnerable parents. There are checks and balances provided by the court process that are absolutely vital when you have two parties with such an inequality of bargaining power.’



Caroline Little, chair of the Association of Lawyers for Children (ALC), says the thinking behind the PLO is good, but she is concerned by the government’s emphasis on reducing the number of care proceedings. ‘It removes external scrutiny and leaves children without a voice, because a guardian is only appointed when proceedings are issued,’ she says. ‘Failing local authorities, of which there are many, won’t suddenly become brilliant, and there is a danger children may get lost in the process.’



She points to the MoJ-commissioned Care Profiling Study by Judith Masson et al, which looked at 386 cases involving 682 children initiated by 15 local authorities. The research found 40% of cases were prompted by a crisis, while neglect was the basis for concern in three quarters of cases. Overall, they found no evidence that proceedings were being brought without good reason.



The study also warned that the expectations of local authorities in preparation for care proceedings under the PLO far exceeded what was undertaken or could have been undertaken before action to protect the child ‘in most of the sample cases’.



District Judge Nicholas Crichton, who sits at the Inner London Family Proceedings Court, anticipates that applications will pick up again as local authorities become familiar with the PLO. But he is concerned that some cases are not coming to court that ought to do so. ‘There is some good clear thinking in the PLO, but I suspect local authorities are going to have trouble implementing it unless they are given more money.’



An MoJ spokesman says there is no evidence cases are not getting to court, ‘though some local authorities may be taking time getting fully up to speed with the new requirements’. He says the MoJ is also ‘unaware’ that any parents are being placed at a disadvantage in section 20 cases, whether under the PLO or otherwise. Overall, he says the government will be looking at numbers of cases and current performance in some initiative areas in the run-up to a more formal evaluation later this year.



The PLO is certainly a ‘valuable initiative’, says George Eddon, principal lawyer (children) with North Yorkshire County Council, though he shares practitioners’ concerns about the risk of cases being left to drift without court scrutiny. ‘There is no doubt that many care cases have been taking too long to resolve, but the PLO isn’t going to improve that unless all parts of the system are properly resourced – and that includes the judiciary.’



Those issues were flagged up in the recent Lord Chief Justice’s first review on the courts, which highlighted delays in the appointment of family judges, the difficulties local authorities have in recruiting and retaining social workers and the poor performance and long delays in obtaining reports from CAFCASS.



On the question of court time, Liverpool City Council, which introduced the PLO earlier than other pilot areas, reports positive benefits. Ann Molloy, assistant city solicitor, admits that at the start the paperwork involved was so frontloaded there was no rush to issue, and numbers dropped. ‘However, we are now up to issuing at the same rate as we did before,’ she says. ‘It has also freed up court time. We used to wait [many] months for a five-day hearing, now it is being scheduled within 10-12 weeks.



‘It is a different culture to get used to and there are some drawbacks. But if everything is done properly to start with, cases should run more smoothly.’



Sheri Holland, chair of the childcare lawyers’ group of Solicitors in Local Government, is assistant head of legal services at Leicestershire County Council. She says the PLO involves local authority lawyers earlier in the process. Leicestershire has not found it difficult adapting to the initiative, she says, but that has been helped by having a ‘very good and settled’ social-work force.



However, she is concerned that the low level of legal aid funding will limit the involvement of experienced private practitioners early on in cases. ‘It is so beneficial to have them on board,’ she says. ‘They can be an independent source of explanation to the client as to why the local authority is going down a particular route. However much a social worker may try to explain it, they are not seen as independent.’



Little says it is too early to judge how the legal aid fixed-fee regime will sit with the PLO. If the number of proceedings does fall, practitioners could be forced to stop working in this field, which would limit families’ access to justice. ‘Morale is already low with the fixed fees, and people are organising exit strategies,’ she says.



When it came to court fees, practitioners did not hold out hope that the MoJ would reconsider, despite the high number of objections, and their fears were realised. The most recent local authority spending settlement already incorporates the transfer of responsibility for the fees to local authorities.



The fees are part of the government’s plans to create a ‘sustainable’ funding system for the civil and family courts, says the MoJ’s spokesman. Local authorities remain under a statutory duty to protect children at risk. ‘The needs of children are central to the operation of family law courts,’ he says. ‘Funding for 2008/09 of some £40 million has since been confirmed as part of the Revenue Support Grant (RSG) settlement and individual authorities have been informed of the amount of their RSG allocation attributable to increased court fees.’



However, Judge Crichton is incensed by the principle behind the fees. ‘Why on earth would we say that a fee should be paid for protecting vulnerable children any more than we would say a fee should be paid for bringing a criminal to justice? It is nonsense.’ He says the government is ‘naive in the extreme’ to claim that it won’t affect cases coming to court. ‘They will still come to court in crisis cases. But local authorities are cash-strapped and they already don’t always bring cases to court quickly enough. If they have to pay £4,000, it may cause them to hold back even longer in chronic neglect cases.’



Barbara Esam, the NSPCC’s lawyer, is equally angry about the fees. ‘It could be all right if the money was ring-fenced and adequate for each area,’ she says. ‘But it isn’t and it will be hard for local authorities not to make finance-led decisions in non-emergency cases, which could mean neglect and emotional abuse cases are put on the backburner.’



At the 5 April conference of family lawyers’ group Resolution, Mr Justice Coleridge broke with tradition to speak out about the ‘ceaseless river of human distress’ passing through the courts as the government failed to deal with the ‘meltdown’ in family life. He said the PLO had the potential to save time and money ‘but only if it, and the system as a whole, is properly funded by government – and that is, it seems, a big if’.



The government is ‘determined to pay publicly funded family lawyers so little that they are just giving up and turning elsewhere’, he said, while social workers are ‘stretched beyond breaking point’ and unable to support vulnerable families in their homes. Local authorities are also unable to fund proper residential assessments so the critically important questions about removing children from their parents can be considered.



He lambasted the government’s proposal that local authorities must take on the cost of instigating and conducting care proceedings. ‘What on earth is the thinking behind a policy which requires one part of government [the local authority] to pay another part of government [HM Courts Service] for the actual cost of administering as vitally important a public service as the protection of the most vulnerable children?



‘It is muddled and dangerous, bureaucratic and illogical. It is certainly not child-centred thinking. And if, as some have suggested, the government is providing the resources to meet the increased cost – what is the point in passing them round in a circle? Of course, it is not doing any such thing. It is all being lost in a small general increase in local authority funding. This increase in the fees will create a major disincentive to local authorities starting proceedings in a timely way. There will be understandable hesitation before children at borderline risk are brought under the protective umbrella of court proceedings.’



Grania Langdon-Down is a freelance journalist