Cafcass: 'We should not have a direct role in public law pre-proceedings work'

Cafcass has welcomed an initiative taken by the judiciary to review what changes need to be made to the Public Law Outline and Child Arrangements Programme.
The president of the family courts division Sir Andrew McFarlane set up a Public Law Working Group to address the operation of the child protection and family justice systems.
The working group followed his speech to the Association of Lawyers for Children in October 2018 in which Sir Andrew McFarlane said: “This additional caseload, alongside the similar rise in private law cases, falls to be dealt with by the same limited number of judges, magistrates, court staff, Cafcass officers, social workers, local authority lawyers, and family lawyers in private practice. These professional human resources are finite. They were just about coping with the workload in the system as it was until two years ago, and were largely meeting the need to complete the cases within reasonable time limits.
"My view now is that the system, that is each of the professional human beings that I have just listed, is attempting to work at, and often well beyond, capacity. As one designated family judge said to me recently, the workload and the pressure are “remorseless and relentless”. I am genuinely concerned about the long-term wellbeing of all those who are overworking at this high and unsustainable level.
Some have predicted that, if the current situation continues, the family justice system will “collapse” or “fall over”, but, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may “collapse” or “fall over”," he added.
The pressures have resulted in a steep rise in public law proceedings seen in 2016/17 and 2017/18 which eased off last year, but there are still a greater number of cases being issued than in earlier years. There were 14,599 care applications made in 2016-17 and 14,221 in 2017-18. This came down to 13,569 in 2018-19 and so far this financial year since April there have been 6,608 care applications made to Cafcass.
Sir Andrew McFarlane asked The Honourable Mr. Justice Keehan to chair the working group on public law and Mr Justice Cobb was asked to chair a working group on private law.
Mr Justice Keehan said: "Our aim is to assist families to be able to make decisions that, wherever possible, enable children to be safely raised within their family network and avert the need for more intrusive state intervention, including court proceedings.
"The simple message which has guided our work, and which must guide all those who work in the child protection and family justice systems, is that the welfare of the children and young people with whom we are concerned must come first and above every other consideration," he added.
The public law working group has six sub-groups, addressing local authority decision-making, pre-proceedings and the PLO, the application, case management, special guardianship and s20 / s76 accommodation.
The group has published its draft report to reflect its current thinking which was out for consultation between July and September 30. The report makes 57 core recommendations in the six sub group categories.
With regards to local authority decision making, the group recommends a renewed focus on pre-proceedings work and managing risk. It also suggests that consideration factors should be developed to support decision-making prior to legal gateway meetings. The the role of local authority legal advisers and the use of the legal gateway meeting should be re-focused.
Under pre-proceedings and the PLO, the group recommends a renewed focus on the central principles in the pre-proceedings phase of the PLO and using the pre-proceedings phase of the PLO early (where required) and effectively. There should be better use of assessments, services and support and fuller record keeping and tracking progress of cases pre-proceedings.
Where Special Guardianship Orders are issued, there should be more robust and more comprehensive special guardianship assessments and special guardianship support plans, including a renewed emphasis on the child-special guardian relationship and special guardians caring for children on an interim basis pre-final decision. There should also be better training for special guardians.
There are also 16 recommendations for long-term change which would require legislative changes to be made.
These include consideration of pre-birth support for families, reconsidering the role of Cafcass pre-proceedings, legal aid funding for parents during pre-proceedings, a review of public funding for proposed special guardians and a review of public funding for those with parental responsibility “signing up to” s20 / s76 accommodation.
A statement from Cafcass published this month said: "Cafcass welcomes the initiative taken by the judiciary to review what changes need to be made to the Public Law Outline and Child Arrangements Programme five years after their introduction. In that time the family courts have experienced unsustainable rises in the numbers of cases coming before them and the working groups are right to point to the need for strengthened pre-court arrangements to ensure courts are only making decisions about children’s lives where it is absolutely necessary. Cafcass also supports the need to take action to improve consistency, streamline approaches, and strengthen case management to improve decisions for those families who do need to be in proceedings."
In relation to the public law working group report, the organisation supports a renewed focus on pre-proceedings work and managing risk, with more emphasis on gaining and recording the wishes and feelings of children at this stage. However, it does not believe that Cafcass should have a direct role in public law pre-proceedings work – and considers this a local authority role. "We want to share learning and good practice so that local authority social workers are equipped to undertake this work and get it right first time," said the statement.
Cafcass also supports the proposals to reduce the number of unnecessary short notice applications, whether made by local authorities at the point of application or courts looking to fill available slots when scheduling. The statement said that in the long-term, HMCTS will roll-out an online C110A form that will prompt the reasons behind a short notice application, with an interim protocol available in the meantime.
"However, we believe HMCTS reforms for family justice are urgent and should, if at all possible, be brought forward," the statement added.
The interim reports for the public law working group and the private law working group are available here.

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