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Child Care Protocol - how is it working in practice?

Two years on from the implementation of the child care protocol, Aina Khan considers whether the profession has fully embraced case management in care cases.

Aina Khan, Solicitor and Senior partner of Aina Khan Partnership

It is now over 2 years since the Protocol for Judicial Case Management in Public Law Children Act Cases was launched in November 2003. It was received by the legal profession with a mixture of high hopes and extreme cynicism. How is it working in practice on its second anniversary?

As a solicitor in East London specialising in child care cases, I use the Protocol on a daily basis. I was one of the lawyers who greeted the Protocol with optimism and hope, believing that if we all committed to it we would see a real difference in the way care cases were handled. Unfortunately my experience has been that, although the conduct of care cases has improved, we still have a long way to go. It is only by much stricter implementation of the Protocol that we will experience any real changes in the length of time care cases currently take to be resolved.

The key area that the Protocol hoped to tackle was 'drift'. The foreword to the Protocol states

'The average care case lasts for almost a year. This is a year in which the child is left uncertain as to his or her future, is often moved between several temporary care arrangements, and the family and the public agencies are left engaged in protracted and complex legal wrangling…..we believe that it is essential that unnecessary delay is eliminated and that better outcomes for children and families are thereby achieved.'

The Protocol sets out 6 steps in a 'Route Map', which tracks the care case from application to the final hearing. The appendices are forms designed to distil the essence of the Protocol so that we are all 'singing from the same hymn sheet'. There is less room for individuals to hijack the timetable and judges must bring matters back on track at various key stages of the case.

The Protocol was particularly helpful to new practitioners who would previously have had to obtain knowledge of care cases at the knee of a senior practitioner. These proactive new practitioners could bring fresh air into what was often a stagnating process.

In practice I have found that there is an unusually high level of resistance to the Protocol amidst the very practitioners it is designed to help. What has surprised me greatly has been the younger practitioners' resistance to using the Protocol. The comments I have come across regularly are 'I can't get my head around it', 'It is totally unrealistic and not like real life', to the truly shocking 'I haven't bothered to read it'.

How is it possible that there are still people who have never read the Protocol yet are still practising in an area which affects the daily life of children?

This situation has arisen because no-one has 'owned' the protocol, i.e. taken full responsibility for driving it forward. Resistance to change should surely have been overcome in the first year. It is the responsibility of the designated Family Judge:-

a) To monitor the extent to which cases are being conducted in compliance with the Protocol and directions and
b) To arrange for the collection of such statistics as the Family Division Liaison Judge and the President of the Family Division may direct.

Have these statistics been collected, and if so, what measures are being taken to tackle non-compliance two years into the Protocol?

The key principles underlying the relevant Practice Direction (Care Cases: Judicial Continuity and Judicial Case Management) are:-

• Judicial continuity
• Active case management
• Standardisation of steps
• Case management conference

Judicial continuity
Judicial continuity is poor, with many cases not being allocated to specific case management judges. I sympathise with the problems experienced by the Clerk of the Rolls and the Principal Registry of the Family Division, as well as the local care centres, in allocating judges. There are too few judges for the growing number of care cases. But where is the promise of the Protocol that additional judicial days for care work would be found?

Active case management
Active case management needs a robust approach. Although a party which is not complying with the Protocol usually gets a "ticking off", nothing is done to ensure that more than lip service is paid to the Protocol. I have seen more use of wasted costs orders in private children's cases where the Practice Direction for filing court bundles is not complied with, than I have for serious breaches of the Protocol. We are all snowed under with conflicting demands, but this cannot excuse delay in cases where children's innocent lives are affected.

Standardisation of steps
I am disappointed at the lack of use of the forms in appendices to the Protocol, which were designed to standardise steps. Appendix A/2, the Case Management Questionnaire, is hardly ever completed by all the parties. They feel that a common questionnaire is enough and it is agreed at the case management conference itself. If the Protocol were to be followed and the local authority served the questionnaire 3 days before the other parties, giving them at least 2 days before the case management conference to consider the issues, the case management conference itself would be a great deal shorter and more efficient.

Case management conference
I am often the only one at case management conferences with the checklist in Appendix A/3, which is most useful in ensuring no steps have been missed. If this form was used in advance by parties to check that all steps due by the CMC had been taken, the Judge at the CMC could quickly pin down those issues which are impeding progress.

It is not only lawyers who are responsible for drift. A key area is the non-availability of experts and the time taken to produce a report. The over-dependence on experts needs tackling. Lawyers automatically turn to experts where we lack expertise. But we should identify precisely why an expert is needed and consider whether there is no other professional already involved who can undertake the task. Too often child psychiatrists are called upon to 'assess relationships within the family', when there is no obvious evidence requiring a high level of psychiatric expertise. The reason often sited is often the lack of experience of the social worker or guardian, but this is not sufficient reason for instructing an expert. A clear distinction is not being made between fact finding (when the most technical experts are used) and disposal. Mental health experts are used in the latter stage, when an experienced social worker may be more suitable. Also, unnecessarily experienced experts are being used in the simpler cases. There is no reason why specialist registrars cannot be used, but solicitors tend to rely on consultants because of fear of junior experts. As practitioners will know, the Chief Medical Officer reported in December 2005 to relevant Government ministers concerning the selection and use of medical experts as witnesses in children cases. His report is expected to be published within the next couple of months. Any recommendations will be put out for consultation.

Experts' fees are another bone of contention. In theory, Appendix C of the Protocol requires an estimate to be provided to the court before permission is given for use of an expert. However in reality judges are often puzzled when asked to consider the financial aspects. It is up to judges to hear the parties' submission with regard to who should pay for the expert and then take a strong line, applying the guidance under Calderdale Metropolitan Borough Council v Legal Services Commission [2005] 1 FLR 751.

The process of agreeing the Letter of Instruction to the expert needs much improvement. To be done well, the letter can take over an hour to draft, and the lead solicitor needs to exercise rigour when editing the questions, so that there are no repetitions. The Protocol states that the letter should be agreed and served on the expert within five days of the case management conference. This deadline is seen as unrealistic and totally ignored. However, the deadline can be complied with by using email for tracking changes to the draft e.g. the lead solicitor sends the draft letter in a Word document, the parties make changes and additions which are visible in red, and the lead solicitor incorporates or rejects the changes. The letter is emailed to the expert with the hard copy to follow. It takes a maximum of five days in the most complicated of cases. The expert has seen how pro-active the parties have been and takes the deadline more seriously.

Finally, it must not be forgotten that there is specific software designed to ease the task of compliance with the Protocol. It is easy to plot the 6 steps of the 'route map' using the software, which has a countdown of the days to week 40, the target set by the Protocol for completion of cases. It alerts one to possible problems with timetabling, and transforms the running of the case.

We should now be looking forward to a more sophisticated use of the Protocol. I am still optimistic and believe practitioners who have taken on the responsibility of a care case want to ensure that it is run according to 'best practice'. I look forward to 2006 being the year when the Protocol is the basic standard to which we all aspire, and a target of 40 weeks for closure of a care case becomes a reality.

Note: For more on the software mentioned in this article visit the Class Legal website here