Independent Social Workers are increasingly being used as expert witnesses in the family courts rather than local authority social workers in a bid to make decisions for the child more swiftly and to provide continuity.

Sarah Blackmore, Barrister and Joint Head of Chambers told an evidence session for the Children and Families Act 2014 Committee that judges do treat social workers as experts in their field.

“But they are becoming increasingly frustrated, as are the practitioners, as to the capacity of the social worker allocated to the case being able to undertake the assessment that is necessary to provide that evidence to the court,” said Ms Blackmore.

Answering a question as to whether social workers are viewed as experts in some courts, Ms Blackmore added: “I don’t get any sort of sense that judges don’t take a social worker’s professional opinion and professional work as expert in that sense. It’s more a question of frustration because there isn’t any continuity of social worker often because the pressures of work mean that they can be off sick and replaced by other social workers.”

“So to get one person to do an overall assessment, the quickest and easiest way seems to be giving permission for an Independent Social Worker to give that evidence,” added Ms Blackmore.

Answering the same question, Lisa Harker, Director of the Nuffield Family Justice Observatory, told the evidence session that “there are some social workers who are very unconfident in dealing with the court”.

Ms Harker said: “It might be wise to look at the training social workers get and the information they receive as there’s a surprising lack of fundamental knowledge amongst some social workers about what to expect in proceedings.”

Hannah Markham QC, Head of the Family Team, 36 Family, said: “There are some really good social workers out there and there are some social workers who are absolutely expert in what they do.”

However, she said the terminology of “expert” is perhaps misleading.

“They are professionals and there will be professionals with a whole arc of different experience. Some are more expert and accomplished in what they do. Others perhaps need far more guidance, training, they need better legal oversight so that the final evidence that they provide for the court is balanced, nuanced, looks at different aspects of parenting and that they have the time and space in which to provide their evidence and in which to undertake their assessment for the court,” said Ms Markham.

“We are back again to this point about recognition and we need recognition that this is a really important public service,” she added.

Ms Markham said that she had become aware certainly in London of social workers coming out of their jurisdiction to come in simply because enough people cannot be encouraged to become social workers.

“So it is about recognising the skillset and ensuring that there is good training in place so that a professional can acquire the expertise within the work they do,” she added.

Further on in evidence, Ms Blackmore explained that, not in the case of a non-accidental injury case or child death, but a regular potential neglect case, there has been a revert back more recently to how matters were before the (Children and Families 2014) Act of applications being made for an expert witness being an ISW to carry out an assessment of a family or a parent’s ability to parent their child which ordinarily should be in the remit of the local authority.

“But there seems to be an increasing number of cases being where applications are being made for that ISW which is then dragging out the 26 weeks and it also begs the question is that necessary? In nine times out of 10 it is necessary because we don’t have capacity within the local authority to undertake that piece of work.”

“So I’m not sure the restriction on the use of experts that was perhaps intended back when the Act first came into being is actually in practice now,” added Ms Blackmore.

When asked by the committee how important the 26 week aspirational timeframe in the Public Law Outline is when dealing with care proceedings, Ms Blackmore said it was achievable when the Children and Families 2014 Act came into force as everything had been set up by the PLO, the process, the Act itself, had in theory was a great idea and at least in the first few months since the Act came into force was achievable within the court process.

“The social workers were preparing as they should have done prior to issuing the care proceedings and the courts and the Family justice system itself was on board with what was expected and so yes to avoid delay for children and decisions being made as to their futures it was a great idea,” said Ms Blackmore.

“But I think because of the way in which society has developed, particularly after the last couple of years during the course of the pandemic, social workers are now fire-fighting to a large extent and are fearful themselves of being criticised for the work they do with families either they are stepping in too soon, or not early enough and bringing the case to court. So I think local authorities generally in my experience will issue care proceedings to get it in front of the court to protect their own professional credibility almost which then clogs the system up and it may be that assessments can happen within the 26 weeks period but then there’s not enough court time available, you get to court and be told yes you can have a final hearing but it’s not going to be for at least another six months which then takes you outside the 26 weeks,” she added.

“So in terms of damaging outcomes for children, it does but is it not a chicken and egg situation that you are back to that vicious circle and there aren’t enough resources and there isn’t enough court time,” she added.

Ms Harker said timely decision making was crucial for children, knowing the impact of delay on children and the need for consistent relationships, particularly at a young age. However, the latest Cafcass figures show that cases are being heard on average within 44 weeks with great regional disparities. The fastest time for a case is 14 weeks while the longest is 69 weeks.

She warned that while reducing delay for children is important, an unintended consequence of the 26 week limit was that it became the success measurement on which everything was judged, whereas in fact the best interests of the child should be the most important measure and in their research into Special Guardianship Orders, sometimes relatives were overlooked in terms of looking after children in a bid to make the 26 week deadline.

Ms Harker concluded that it is important not to lose sight of the best interests of the child at all times.