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New mothers frequently given little notice when care proceedings involving newborns are issued

The number of babies involved in care proceedings continues to rise and mothers are rarely given much notice, research for the Nuffield Family Justice Observatory has found.

The number of newborn babies in care proceedings in England increased by 20 per cent between 2012/13 and 2019/20, rising from 2,425 to 2,914 per year. In Wales the number was higher still and rose by 40 per cent from 145 in 2012/13 to 203 babies per year in 2019/20.

Furthermore, more than four out of every five cases in England, and three quarters of cases in Wales, were heard with less than seven days’ formal notice for the mother. One in every six mothers faced care proceedings issued and heard on the same day.

Lisa Harker, director of Nuffield Family Justice Observatory, said: “The separation of a mother and baby is deeply traumatic for all involved and has lifelong implications. Although in some cases urgent action following the birth of a new baby can be necessary where there is an immediate safeguarding need, there is widespread concern that the volume of these cases is increasing."

“Not only does it seem that chances are being missed to work with vulnerable mothers much earlier to give them the best chance of staying together as a family, but when that is not possible, the process is often not being managed in a sensitive or humane way,” she added.

When a local authority issues care proceedings under s.31 of the Children Act 1989, a request can also be made for an urgent hearing. Urgent hearings can be particularly traumatic immediately after birth, and can compromise parents’ Article 6 rights under the Human Rights Act 1998, because the notice period means that it is very difficult for parents to effectively instruct a solicitor.

In addition, short-notice care proceedings can mean that the social worker representing the child has very little time to examine the case and advise the court on the best interests of the child.

The research refers to concerns raised in the President of the Family Division’s Public Law Working Group which called for compilation of reliable data about urgent applications. According to the report, in the 12-month period December 2019 – November 2020, Cafcass – which defines short-notice hearings as those which take place less than seven days from the application issue date, which includes emergency hearings (defined as taking place less than three working days from the application issue date) and no-notice hearings (defined as taking place on the day of issue) - recorded as follows:

  • 55% of all public law cases had short-notice hearings (an increase of 3% on the same period 2018/19)
  • 66% of all care applications had short-notice hearings (an increase of 2% on the same period 2018/19)
  • a 1% rise nationally in short-notice care applications for the last full quarter (July – September 2020)
  • the increase in short-notice applications over the last five years is 6% for all public law cases, and 9% for care applications.

The PLWG report said: “Some emergency/urgent hearings cannot be avoided (where there is an unexpected precipitating event), but many such applications do not fall into this category. This may reflect a lack of effective pre-proceedings work, as well as the pressure of work on local authority social workers and/or lawyers so that non-urgent cases become more urgent.”

“These hearings give limited opportunity for parents to participate fully in the hearing with legal advice and representation. The child is ‘behind the curve’ as the children’s guardian/children’s solicitor is likely to have had little, if any, opportunity to make the necessary enquiries before the hearing. It also puts pressure on the court to find a suitable tribunal to hear the case at short notice. Cafcass data further indicates that short-notice cases generally have an increased duration, more hearings and involve younger children,” the report added.

The Nuffield FJO research adds that since the implementation of the 1989 Children Act, there has been no systematic review of how cases of care proceedings are managed at birth – something the authors hope will be changed as a result of a national conversation about the issue being prompted by this research.

The study, which was carried out by the Family Justice Data Partnership for Nuffield FJO also found that London differs very significantly from both Wales and many regions of England, particularly, the North West, North East, and Yorkshire and the Humber.

London has the lowest numbers of newborn babies in care proceedings, less than a third of the numbers in the North East of England, and less than half of the numbers in the North West of England or in Wales.

The research shows:

  • In London less than one in ten hearings are heard on the same day, and there are almost as few in the South East.
  • In the North East, the proportion of same-day newborn cases has doubled in the region over the period (to 41% in 2019/20)—by far the highest rate across England and Wales.
  • In Yorkshire and the Humber, although the proportion of same-day hearings is lower than in the North East, at 27 per cent in 2019/20, it is growing and higher than the national average of 18.5 per cent.

A number of interrelated factors are likely to be at play, including levels of poverty, the availability of services to support vulnerable mothers and babies, and hospital discharge policies.

Professor Karen Broadhurst, principal investigator on the research project, said: “Deprivation twinned with a lack of services is a perfect storm when it comes to keeping families together. Earlier research has suggested that the greater availability of preventative services in London, such as mother and baby placements and the quality of legal advocacy, had resulted in fewer infant cases being issued at birth, than in the North of England or Wales."

“The greater use of short-notice hearings in England and Wales requires further analysis – I see the statistics as a first step in working collaboratively with professionals and family members alike to understand this trend and to consider whether there are alternatives to issuing care proceedings so soon after birth,” she concluded.

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