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Effecting change in local family justice systems? Findings from the Cafcass Pre-Proceedings Pilot

Dr Karen Broadhurst of Manchester University explains the findings of a recently completed pilot involving family court advisers in public law pre-proceedings practice.

Dr Karen Broadhurst, Lancaster University














Dr Karen Broadhurst
, Senior Lecturer in Socio-Legal Studies, University of Manchester

Introduction
The Cafcass Pre-Proceedings Pilot that sought to test the added value of the family court adviser in pre-proceedings practice is now complete in Coventry and Warwickshire1. The full report is here. In addition, the third pilot site, Liverpool, is sufficiently progressed that it is timely to report on this initiative. As a number of other local authority sites experiment with different ways of shoring up pre-proceedings practice in keeping with the Family Justice Review, messages from this project provide interesting insights into the opportunities but also challenges to effecting change in local family justice systems. The pilot project has enabled the team to follow up in detail 752 pre-proceedings cases across the three sites that entered a formal pre-proceedings process in 20113, and to follow the twists and turns that cases have taken in respect of both diversion from, and the duration of, care proceedings. Findings are derived from detailed prospective tracking4 of cases in which the family court adviser was involved in pre-proceedings (the Cafcass PLUS sample) and a cohort of comparator cases.  This study has taken place during a period of far-reaching change in policy and practice; however, prospective tracking has enabled a view to be gained of very recent practice with a number of the cases in our sample concluding in 2013.

The aspirations of the Family Justice Review and government response have been much rehearsed. Thus, it is sufficient to state that proposed changes aim to tackle inefficiencies in all elements of the family justice system such that 'cases are better managed, delays are minimized and children's needs come first'5. However, as history has shown us, change does not come easily. There have been multiple attempts to tackle delay in legal proceedings concerning the welfare of children, from wholesale legislative change to a range of local initiatives. Only time will tell if planned changes can deliver much shorter care proceedings, achieving the proposed target of 26 weeks. Messages from this pilot study offer some very positive observations in respect of safe and effective diversion, but outcomes in respect of the duration of care proceedings highlight the difficulties in effecting change in complex systems6.  We offer an analysis of the barriers to change, drawing on the theoretical literature on complex systems and offer practical suggestions for local Family Justice Boards. 

Diversion
Introducing the Family Court Adviser into pre-proceedings social work aimed to support diversion of cases from public law proceedings, wherever safe and desirable. This is in keeping with the aspirations of the Public Law Outline which emphasized thorough appraisal of alternatives to care proceedings in 'edge of care' cases. Across all three sites, diversion rates are higher than the only available benchmark of 25% (Masson et al., 2013)7 and tracked cases have shown positive progress in respect of improvements in family functioning/alternative family placement such that cases are now closed to pre-proceedings. The following outcomes are recorded:

Review of the 75 cases across the three sites indicates that the formal pre-proceeding process can contribute to safe and effective diversion of cases from care proceedings. Stakeholders also report that the earlier involvement of the family court adviser provides a level of independent child-centred scrutiny that adds value to administrative decision-making. The strongest endorsement for the Cafcass PLUS model is in the Liverpool site. That said, the overall diversion rates are comparable rather than significantly different across the Cafcass PLUS and comparator groups.

The participating local authorities are in part achieving high rates of diversion because alternative kin carers are identified pre-proceedings. Children are achieving permanence within kin networks without the need to bring public law proceedings. Negotiated approaches to permanent child placement are then secured legally through private law orders (residence orders, special guardianship). Where the parents' legal representatives and the family court adviser attend the pre-proceedings meeting and plans for permanence within extended family networks are agreed, this provides a level of independent scrutiny in respect of both the rights of parents and children8. Kinship networks require adequate support if they are to deliver a sufficient standard of care for infants and children who have most likely been removed from situations of risk9  Shortfalls in support to kinship carers have been much documented and in straitened times, it is important that they are not simply seen as an economic alternative to foster care or adoptive families.

The importance of independent oversight for the child within pre-proceedings was raised in the first process evaluation of the Public Law Outline by Jessiman et al., 200910 and further elaborated within our own work in 201211. In this study we noted some drift in pre-proceedings permanence planning and have constructed individual case profiles that chart the child's journey from first legal planning meeting through to final hearing (care proceedings). Any further development of the Cafcass PLUS model would need to consider how the family court adviser could be deployed to avert drift.

Duration of care proceedings: Coventry and Warwickshire
The picture regarding duration of care proceedings is more complicated, with the pilot delivering different results across the sites. All three sites demonstrate improvement when compared with annual performance profiles prior to the start of the project, but there are marked differences in the extent of this improvement. The outcomes from Coventry and Warwickshire also stand apart from those of Liverpool.

Turning initially to the pilot sites in Coventry and Warwickshire, in 2010 average case disposal  stood at some 70 weeks for care proceedings. This statistic placed this combined court area firmly 'in the red' in terms of its national profile. When considering this local context, current statistics show considerable positive change but it is clear that more work needs to be done to achieve a target of 26 weeks in even 50% of cases. At the conclusion of the project the following results are recorded:

Exactly double the number of Cafcass PLUS cases concluded within 26 weeks, than the comparator cases. However, numbers are very small, so findings must be treated with caution. Nevertheless, at the level of detailed case analysis, it was clear that in order to achieve the 26 weeks target there was absolutely no room for lack of clarity in plans or assessment objectives, and that the 'head-start' for the FCA was an important element in a planned and more expedient approach to care proceedings. The performance of the Warwickshire Cafcass PLUS cases is distinctly better than the comparator cases, with and without the inclusion of the consecutive birth cases. Across both sites and samples, a target of 26 weeks appears currently out of reach for the majority of cases, although there is marked improvement in this combined court area.

Overall in Warwickshire, performance lags behind Coventry and this is largely attributable to the number of cases in Warwickshire that enter care proceedings on an unplanned/emergency basis. Timely entry of families to a pre-proceedings process is essential if a genuine window of opportunity is to be seized and clarity gained about parents' capacity for change. In our interim report we stated that pre-proceedings involvement of the family court adviser cannot readily overturn shortfalls in pre-proceedings assessment such that a target of 26 weeks can be achieved. To provide a broader context to the differences observed between Coventry and Warwickshire, it is noteworthy that Coventry, a small City authority, has been able to establish a dedicated pre-proceedings parenting assessment service, managed independently and staffed by highly experienced social workers and ex children's guardians. This service appeared instrumental in delivering both: a) higher diversion rates, and b) a planned approach to care proceedings where cases progressed to court. Warwickshire is a large authority covering a dispersed geographic area which creates far more difficulties in respect of creating specialist services that can serve the whole authority.

Factors causing delay in long-running cases (Coventry and Warwickshire)
It was clear that there were significant barriers to effective case resolution during this pilot, as cases progressed to care proceedings. In some cases, unexpected events such as the birth of a second infant created a level of case complexity that could not have been predicted or planned for at the outset of proceedings. In other cases, care proceedings were unnecessarily lengthy, given that the pre-proceedings process had served to narrow the issues that the court needed to consider. There was evidence of continued duplication in respect of further assessments instructed within proceedings. Positive impact identified in respect of pre-proceedings involvement of the family court adviser in our interim report did not consistently translate into shorter care proceedings. In particular the issue of fluctuating mental capacity13 appeared to create untold delay, where parents were not deemed to meet the threshold for the services of the Official Solicitor. Difficulties in answering questions about what kind of advocacy parents needed and the responsibility for funding, led to delay that was neither planned nor purposeful. This indecision also left vulnerable parents without effective advocacy for months.

From detailed review of the long running cases and interviews with key stakeholders it has been possible to identify the most common and significant factors implicated in delay. We have divided factors into those that are systemic or institutional and those that derive from child and family characteristics.

Systemic factors included:

  1. The enduring problem of variability in the quality of social work assessment but equally failure of courts to recognise good social work practice which creates something of a 'chicken and an egg' situation;
  2. That a number of cases appear to enter the pre-proceedings process too late when families were in crisis, and swiftly proceeded to an  unplanned  or emergency application;
  3. The difficulty of making effective decisions about, and providing effective support to, parents with fluctuating mental capacity who are not deemed to warrant the services of the Official Solicitor;
  4. Difficulties in timetabling contested final hearings due to insufficient court sitting time and problems of co-ordinating the diaries of very busy professionals.

Child and family factors included:

  1. Late joining of kin and/or late claims to paternity on the part of fathers;
  2. Child health, disability or behavioural issues;
  3. Difficulties posed by cases involving larger sibling groups where there are different plans for infants/children;
  4. The negative impact of short interval consecutive births on case duration where care proceedings are consolidated around two infants.

Inevitably, child and family characteristics are less amenable to external control than systemic factors. However, any further development of the Cafcass PLUS model would need to address systemic shortfalls and ensure a 'whole system' approach to change. Simply manipulating one element in the system appeared insufficient in Coventry and Warwickshire if progress is to be measured against a proposed 26 weeks target. 

Duration of care proceedings in Liverpool
The Liverpool project is still in its infancy, but the Cafcass PLUS cases that have concluded to date have all concluded well within 26 weeks. However, only a very small number of cases have as yet proceeded to care proceedings, so this finding must be treated with caution. What is very clear however, at this stage is that there is radical improvement in this family justice area which also found itself 'in the red' in 2010. In this local family justice system, significant energies have been and continue to be invested on the part of all stakeholders (Liverpool City Council, the judiciary and Cafcass) in whole system change. The research team provided feedback from the initial pilot sites which informed reconfiguration of pre-court social work. The pre-proceedings protocol devised by HHJ De Haas served as a vehicle for opening up discussion and ensuring greater social work compliance with the PLO. This initiative dovetailed with other changes, which included pre-proceedings involvement of the family court adviser. Whilst full findings are yet to emerge, indicative insights from a range of stakeholders are that whole system change has been achieved through the combination of changes pre-proceedings and a more robust approach to judicial case management.

Again, it is noteworthy that a dedicated pre-court social work service affords high levels of home visiting and intensive work with families against very clear objectives agreed at the formal pre-proceedings meeting. This formula appears to deliver higher rates of diversion and swifter court proceedings, where intervention fails to effect change in parents and kin networks. In this context, the family court adviser can complement or confirm robust assessment and intervention from an independent child-centred perspective.

To-date all stakeholders in Liverpool endorse the Cafcass PLUS model valuing the independent child-centred oversight the FCA brings to pre-proceedings. However, it will be important to follow up these cases to establish whether any clear difference emerges between the Cafcass PLUS and comparator cases. To-date, none of the comparator cases have reached final hearing such that final conclusions cannot be drawn at this stage. Given recent changes to the Public Law Outline, the family court adviser will now have a window between application of care proceedings and the first hearing whereupon he/she will be expected to provide a steer to the court. Consultation with family court advisers working under the revised protocol will be important to establish the merit of any further development of the Cafcass PLUS model. Where stakeholders expressed reservation, both at interim point and as this pilot has continued, is in relation to capacity within Cafcass given the continued high volume of care applications. How might the family court adviser be deployed within pre-proceedings without depleting resources needed within care and adoption proceedings?

Effecting change in complex systems
In seeking to understand what appear at this point to be clear differences in outcomes between the pilot sites, it is worth considering the literature on 'complex systems'.14 Whilst there is much invocation of a 'systems' approach within the Family Justice Review, there has been little theoretical explication of just what that means. Applying a theoretical lens enables barriers to change to be better understood within local family justice systems. Complex systems are characterized by:  

The interdependence of elements is a critical consideration within local family justice systems and explains why cases that progress to court on an unplanned basis have such a 'knock on effect'. In addition, because objectives are not clear from the outset of these cases, case trajectories are emergent and depend on information coming to light during proceedings15. Whilst it will be impossible to ensure that all cases progress to court on a planned basis, ensuring that families enter the pre-proceedings process at a timely point, such that there is a genuine opportunity for change, will deliver benefits in those cases which do progress to court.

Improving the functioning of systems (here we can draw a parallel with families) requires improving the system's resilience. Resilient systems are those that have some spare capacity which enables adaptation to crisis or increase in demand. In Coventry and Warwickshire, in common with other local authority areas, there has been an incremental rise in the volume of care applications but without any increase in resourcing which weakens the system in terms of adaptive response. However, resilient systems are also characterised by flexibility, and it is here, that in straitened times, gains might be made. Flexible rather than standardised deployment of resources might make for a more effective system response, such as the flexible deployment of the family court adviser or independent social workers. At the very minimum, agencies must transcend institutional boundaries to share expertise and engage in joint learning at a local level. It may also be that cases require a differentiated response, with potentially complex cases highlighted at the outset of proceedings and flagged for greater judicial input/case management oversight (e.g. large sibling groups).

The importance of establishing feedback mechanisms was emphasised in the Munro Review16, and the Family Justice Review has made much progress in respect of addressing information deficits within the courts. Local Family Justice Boards will continue to drive change, equipped with better information to identify recurrent obstacles to expedient case resolution. The findings from this project suggest that practices within different local authorities can deliver quite divergent responses to what are in effect similar cases. Thus, it is imperative to establish feedback mechanisms that can throw light on the particular systemic shortfalls in local contexts. Our work with key stakeholders found high levels of expert knowledge among practitioners groups, which if capitalised on, could lead to significant system change.

To summarise, the following seven practical steps which arguably, already underpin thinking in respect of the functioning of local Family Justice Boards, will ensure that efforts to effect change are maximised in complex systems: 

  1. Establish a collaborative body that can lead change which effectively represents all the elements within the system;
  2. Identify and diagnose re-occurring patterns that create delay in local contexts (focus on systemic [institutional] weaknesses);
  3. Start with win-win issues (e.g. provision of advocacy for parents with problems of mental capacity). Think in terms of changes that will impact on a number of elements in the system;
  4. Understand that where changes are attempted that damage (or are perceived to damage) the interests/survival of any element in the system, then resistance will be encountered. Work towards convergence in goals;
  5. Create greater flexibility in the system to improve performance (e.g. flexible deployment of FCA/ISWs). Consider a differential response to particular cases that risk extensive delay (e.g. consecutive birth/larger sibling groups); 
  6. Maintain dialogue and collaborative relationships within the system and create effective feedback processes;
  7. Think outside the box in respect of how demand might be reduced on all elements within the system (e.g. current work that aims to reduce consecutive birth cases17).

__________________
Footnotes:

[1] The full report, researched by Dr Karen Broadhurst and Dr Paula Doherty of Manchester University, Ms Emily Yeend of Lancaster University, and Ms Kim Holt and Dr Nancy Kelly of Bradford University, is available on the Cafcass website.
[2] Cases continue to be recruited to the Liverpool site, to achieve a total target of 96 cases. Difficulties in gaining parental consent for pre-proceedings participation of the family court adviser have stalled this project throughout.
[3] A small number of the Warwickshire comparator cases entered the pre-proceedings process at the end of 2010.  
[4] Cases have been tracked from the initial legal planning meeting, through to the final hearing (care proceedings) during 2011-2013. Work is ongoing in Liverpool. 
[5] The Government Response to the Family Justice Review, p. 13, para. 39 
[6] The language of systems theory has become more prominent in respect of conceptualizing change in child protection systems. See: Munro, E. & Hubbard, A. (2011) A systems approach to evaluating organisational change in children's social care. British Journal of Social Work, 41 (4), pp. 726-743. 
[7] Masson, J., and Dickens, J with Bader, K and Young, J. (2013) Partnership by Law? The pre-proceedings process for families on the edge of care proceedings. School of Law, Bristol University and Centre for Research on Children and Families, University of East Anglia 
[8] Cases were tracked from legal planning meeting through to final hearing (care proceedings) with individual profiles constructed for each case. See final reports.
[9] Making not Breaking: Building Relationships for Out Most Vulnerable Children: findings and recommendations of the Care Inquiry, p.7, para. 3.12.
[10] Jessiman, P., Keogh, P. and Brophy, J. (2009) An early process evaluation of the Public Law Outline in family courts, Ministry of Justice, Series 10/09 (p.34)
[11] The issue of whether cases entered proceedings on a planned or unplanned/emergency basis has been the subject of significant discussion, see: Hunt, J. (1998) A moving target; care proceedings as a dynamic process, Child and Family Law Quarterly, 10 (3), pp281-289.
[12] The longest running cases (70+ weeks) were cases in which mothers gave birth to a second infant during proceedings and proceedings were consolidated around the two infants. In all cases, only a short interval of time elapsed between pregnancies and birth complications associated with the second born, further complicated the case. Although cases were considered for typicality at the outset of the project, these cases clearly became outliers in respect of the number of issues that emerged during proceedings.
[13] Practitioner anxieties about mental capacity can be understood in the context of case law precedents such as: Re M (A Child) [2012] EWCA Civ 1905. Where parents are not deemed to need the services of the Official Solicitor, they may however still require specialist advocacy in order to engage with the legal process, with parents' legal representatives not necessarily holding those skills. In the Coventry and Warwickshire final report we provide illustrative case examples which indicate the extent of delay arising from this issue, running to months rather than weeks.
[14] A. Rapoport (1986) General systems theory: Essential concepts and applications, Abacus Press, Cambridge, MA.
[15] Ibid: point x above.
[16] Munro review of child protection: final report – a child-centred system.  
[17] Broadhurst, K. & Mason, C. (2013) Maternal Outcasts: raising the profile of women who are vulnerable to successive, compulsory removals of their children – a plea for preventative action. Journal of Social Welfare and Family Law, published online 21.6.2013. DOI:10.1080/09649069.2013.805061.

10/7/13