Care Proceedings: the Operation and Effect of Pre-Proceedings – What do lawyers need to know?
Professor Judith Masson, School of Law University of Bristol, and Dr Jonathan Dickens, Centre for Research on Children and Families, University of East Anglia, explain the lessons learned for future practice from research conducted into the use of the pre-proceedings process in care cases.
Professor Judith Masson, School of Law University of Bristol, and Dr Jonathan Dickens, Centre for Research on Children and Families, University of East Anglia
The introduction of the new PLO from July of this year is the latest in a series of attempts to ensure that care proceedings are determined in accordance with the 'overriding objective' fairly, making proportionate use of the court's resources and within the child's timescale. There is a new and stronger emphasis on speedy decision-making; the target for completion is 26 weeks (as proposed by the Family Justice Review and included in the Children and Families Bill) but extensions of up to 8 weeks at a time will be allowed with 'specific justification' so that cases to be decided justly (para 6.2). Local authorities must prepare so that cases can progress when proceedings are issued, and the court must ensure that proceedings are more focused, seeking additional assessments only if they are necessary to determine the issues to be decided. The structure of care proceedings is revised: the CMH after 12 days with the possibility of a Further CMH before day 20; the court has more flexible powers, including to give directions without a hearing; and a cafcass/ cafcass Cymru initial assessment is to be available (possibly orally) at the CMH.
Mere changes in the structure of proceedings have not previously been able to deliver more timely decisions for children. As the President has indicated, a change of culture is required. Cases will have to be handled differently both in local authorities before proceedings start and in/for court while they are continuing. Care proceedings can be determined in less time, the work of the Triborough scheme has shown this with more than half of cases completing in under 26 weeks at the last count. The President has recently emphasised the vital importance of the pre-proceedings stage. Recently published research shows the value of this work for parents, and highlights the need for courts to take proper account of it so as to avoid additional delays for children.
What is the pre-proceedings process?
The pre-proceedings process for care proceedings was introduced with the original PLO, in April 2008, with the aim of diverting cases from care proceedings, or if that was not possible, improving local authority preparation and narrowing the issues so that cases could be decided more quickly, within the 40 week target. A revised version of the Children Act 1989 Guidance, Volume 1, Court Orders (DCSF 2008) set out a new process for local authorities to follow unless 'the scale, nature and urgency of the local authority's safeguarding concerns are such that [it is] not in the child's interests' to do so (para 3.30). Under the new process, the local authority was first required to take legal advice to establish whether the requirements for court applications and orders are met. It should then send a 'letter before proceedings' to the parents, outlining its concerns and inviting them to a pre-proceedings meeting. The letter entitles parents to level 2 legal aid, currently £364, so that they can obtain legal advice and be accompanied by their lawyer to the meeting. Following the meeting, the local authority was required to send a revised plan for the child, setting out what the parents must do to safeguard the child and the action the local authority would take if they do not keep to this. The letter before proceedings had to be filed with the local authority's care application but the PLO gave no further guidance about how the court should respond to them.
How is the pre-proceedings process working?
In April 2010, a team from the Law School at University of Bristol and the Social Work School at University of East Anglia began a research project, funded by the ESRC (Grant No RES 062-23-2226), to examine the operation and impact of the pre-proceedings process. The report of the research has been published and a 4 page summary is also available. This article provides key points on the operation of the process for lawyers who act in care proceedings.
The research explored practice in six local authorities in England and Wales, and the courts they used, through an examination of local authority files and court bundles; interviews with lawyers, social workers and managers; a focus group with judges; observations of pre-proceedings meetings; and interviews with parents who attended them. There were over 200 cases in the file study, over 50 interviews with local authority staff, 19 interviews with lawyers in private practice and 24 interviews with parents. The file sample cases all started in 2009 with legal advice that a case could be made for care proceedings. Observations took place in 2010 and 2011, and cases were followed up briefly before the end of the study to find out what happened.
The combination of methods means that the study provides a good picture of the use being made of the process, the practice in pre-proceedings meetings, the experiences of parents, and the impact on cases and on court decision-making. Practice varied between, and within, local authorities, as should be expected where the social workers and managers are seeking to respond to individual parents and their child's circumstances. There was no single standard way of working but there were some common practices, attitudes and difficulties. The size of the study means that we expect it covers the range of practices, experiences and impacts.
What use are local authorities making of the pre-proceedings process?
The local authorities in the study were using the pre-proceedings process in almost all cases where there was time to do so. Where the process was not used, care proceedings were generally issued within 15 days of the legal planning meeting, indicating there was insufficient time for the process. Staff in these local authorities, both lawyers and social workers, were generally positive about the pre-proceedings process. They saw it as the right, respectful way to work with parents facing probable care proceedings, and felt that legal advice at this stage was useful for parents, and for them.
Sending a letter before proceedings did not mean the social worker thought that care proceedings could be avoided. Local authorities used two different forms of the pre-proceedings letter: the standard letter, set out in the 2008 Guidance headed 'HOW TO AVOID GOING TO COURT', and a 'letter of intent' indicating that care proceedings would be issued. Letters of intent were less common, around one in five of the letters seen, but one of the local authorities used them in a quarter of its cases, and they were frequently used in cases relating to unborn children where a child had been removed previously. Attached to the pre-proceedings letter were the local authority's concerns, this could be a long and detailed list of failings and incidents or headlines relating to the main issues.
Two features were common in cases where the pre-proceedings process was used: (1) Almost all the children had child protection plans; this was true for less than half of the cases taken directly to court. Local authorities used the pre-proceedings process as 'a step up' from ordinary child protection planning, to mark the seriousness of their concerns or where parents had not responded sufficiently to the child protection plan. (2) Thirty per cent of the cases related to unborn babies; the pre-proceedings process provided a framework for working with parents in these cases and enabled parents to have legal advice when crucial matters were discussed such as co-operation with pre-birth assessment or the baby's care after discharge from hospital. These are high risk cases; the vulnerability of new babies means that lack of parental co-operation with a protection plan may lead to a decision to remove the child. Criticism of local authorities for using Children Act 1989, s.20 accommodation (R (G) v Nottingham CC  EWHC 152 (Admin), Coventry CC v C  EWHC 2190 (Fam)) has made it more important for the local authority to ensure that parents have legal advice.
Although the most common use of the pre-proceedings process was to avoid care proceedings by improving parenting and the children's care, it was also used to discuss parents' agreement to alternative care with relatives or foster carers, to assessment or to the provision of services. These issues were not necessarily separate; both alternative care and the provision of services might be discussed as a way of avoiding proceedings. One local authority made substantial use of the process to get parents' agreement to assessments by an external agency; this was the main aim in nearly half of its pre-proceedings cases. Others did this only infrequently, and had largely ceased trying to complete assessments that would satisfy the court because of negative experiences in proceedings and the need to control their costs.
Who gets pre-proceedings letters?
Local authorities were more likely to send letters before proceedings to mothers than fathers. Where parents were living together, a joint letter was usually sent; only 40% of separated fathers were sent letters. There are many reasons why fathers might be excluded – unknown identity or whereabouts, lack of involvement, concern for the mother's safety etc. It is also common for children's services to focus on mothers to the exclusion of fathers.
Parents reported being shocked when they received the letter and alarmed at its contents, even though these frequently reflected existing child protection plans and they had often been informed in advance. Seeing the local authority's concerns in writing brought home the seriousness of their position. The letter was a 'wake up call' even though many harboured views that the local authority had no business interfering in their family and that they were being unfairly targeted.
Despite advice that the letter should be taken to a solicitor and accompanied, usually, by a list of solicitors who did this work, a few parents saw no need for this. Others experienced difficulty contacting a solicitor, and some had to approach several before finding one to act for them. One reason for this could have been the limited number of 'matter starts' a firm had, and a practice of rationing these each month. Another was the limited number of solicitors' firms in the locality; mothers found their chosen firm was acting (or had acted) for the father.
What happens at pre-proceeding meetings?
It was not unusual for lawyers to get very little notice of the meeting, because these were arranged at short notice or because parents had not contacted them promptly. Local authorities were generally very accommodating in changing meeting dates so that a lawyer could attend with the parents. Distance could make it difficult for a parent to meet their lawyer in advance; local authorities responded to this by arranging meetings to allow lawyers and parents to talk before the start.
Meetings were quite small, most commonly with only seven participants but local authority staff generally outnumbered family members and their advisers. They were relatively short; three-quarters lasted only 45 minutes, but in one study LA were generally much longer, lasting an hour and a half or more. Parents and professionals generally saw these as social work meetings, and the discussion was largely between the social worker/ manager and the parent. However, the presence of lawyers made parents and social workers see these meetings as more serious.
In some cases, local authorities arranged review meetings. These were used to monitor parents' progress and also to inform them that proceedings would be started where concerns had not been addressed. Lawyers also attended some review meetings. Discussions of the arrangements for the first hearing could ensure that the lawyer was aware of the local authority's plans and sufficient court time was booked.
What do parents' lawyers do at pre-proceedings meetings?
The role of the lawyer was to provide advice – before, during and after the meeting – and to support parents in the process, rather than to provide representation. The parents who were interviewed said that their lawyer's presence made them feel more confident and able to speak directly. This did not necessarily prevent parents feeling pressured to agree with proposals and plans when the alternative appeared to be a court application, but it did provide independent advice about the alternatives. Sally Fry did not want her baby to live with her mother (who was already caring for her older children under a SGO) while she completed a substance abuse programme. But fostering with the grandmother was the best for the baby. Lawyers generally said very little in meetings, nevertheless they had an important role monitoring proposals, checking that the local authority's requirements were clear, and parents really felt they could comply. There appeared to be little room for negotiation but social work managers were willing to accept some moderation of draft agreements 'at the edges'. Lawyers also had a calming influence, and sometimes arranged 'time out' to avoid a damaging loss of control by their client.
Most but not all the parents' representatives were qualified solicitors, the others were paralegals, legal executives or trainees. Effective support was not confined to qualified solicitors, knowledgeable paralegals, who had the confidence of their clients and could communicate well with them could be effective. However, some clients were poorly served by people who appeared to have little understanding of social work practice or their client's position.
What is the effect of the pre-proceedings process?
There were no care proceedings in a quarter of the file cases where a standard pre-proceedings letter was sent. An even higher proportion of observed cases were diverted from care proceedings. This is a remarkably positive outcome given the nature of the concerns and often the length of the family's involvement with Children's Services. In two-thirds of these cases, parental care improved sufficiently for proceedings to be avoided. In half of these the improvements in care and co-operation were substantial. In the other half, improvements were more limited, and other factors such as the difficulties of bringing a case based on past incidents or uncertainty about evidence also influenced the decision. In the remaining third of cases, alternative arrangements for the child's care were agreed, or achieved by the other parent making a s.8 application. Children generally went to live with relatives but some were fostered under s.20. Sally Fry did not succeed in controlling her drug use; her baby stayed with the grandmother, who was considering a SGO application.
Improvements in parental care occurred where parents came to understand the seriousness of the concerns, used the services offered and made some changes in their lives. Effective pre-proceedings meetings provided a foundation for this. A good relationship with the social worker and motivation to change were crucial. Parents' lawyers acted as a catalyst – helping clients to see the seriousness of their position and feel that they could do something about it. In a few cases a lawyer's assistance was more direct: Mrs Mahmood's solicitor encouraged her to obtain and extend injunctions against her husband. This, together with her participation in a 'Freedom programme' and social work support, enabled Mrs Mahmood to understand the effects of domestic violence on her children and herself, and to demonstrate this to Children's Services. This took time, the pre-proceedings process lasted 18 months and the child protection plans continued after the process ended.
Where care proceedings were not avoided, the pre-proceedings process could result in a substantial delay in court applications. On average, the period between the legal planning meeting and the care application was almost 6 months for cases with pre-proceedings but only 2 months for cases without. The suggestion that the pre-proceedings process does not give parents sufficient time to show improvements was not supported by the research evidence but incidents before or after the pre-proceedings meeting precipitated application to court in some cases.
Court proceedings were not dealt with more speedily where the pre-proceedings process had been used. Indeed, there was no difference in the average length of proceedings. Courts adopted a start again approach, apparently discounting what had happened during the pre-proceedings stage. This in turn made local authorities very reluctant to commission further assessments before a court application. Overall, the process met the aim of diverting cases from proceedings, but had no discernible effect on court proceedings. Similar proportions of cases were contested and the proportions of the different types of order were the same.
What are the important messages for parents' lawyers?
Parents who receive a pre-proceedings letter have 'a last chance' to avoid care proceedings. Taking this chance means making changes, particularly co-operating with Children's Services. It is not possible to predict accurately which parents will succeed. Lawyers will help by making sure clients understand the importance of co-operation and are realistic about being able to keep any agreement they sign. Some clients may need more support than Children's Services appear to offer. Negotiating for additional services (within reason) may be helpful but will strengthen the local authority's case if parents fail to make use of these.
Quite a long period may elapse between the meeting and any proceedings. No news may be good news for a client, but only if they are consistently managing to provide good enough care and engaging with Children's Services, rather than simply building the local authority's case.
The majority of parents who receive a pre-proceedings letter do not avoid care proceedings, and most care proceedings result in parents losing care of their children. Relative placements are increasingly common; over a quarter of cases ended with residence orders (usually to a parent who had not had care at the start of proceedings) or special guardianship, and some children on care orders were placed with relatives. Identifying a relative who can care before proceedings are started can help to minimize the disruption for children.
Clients may be well served by an unqualified person, but only if that person has the knowledge, temperament and skills to work effectively with Children's Services and with parents in extreme difficulty. Providing pre-proceedings advice is not a single event, continuity of adviser is likely to increase parents' confidence in the person acting for them.
There are very few (if any) parents who benefit from being parties to care proceedings.
Shorter care proceedings make it even more important that parents are helped to address the local authority's concerns at the pre-proceedings stage. Few parents are able to demonstrate change during care proceedings. Shorter proceedings will mean it is even harder to do so.