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The Revised PLO: A Long Road Ahead

Christina Blacklaws, founding partner of Blacklaws Davis LLP, and Karina Lickorish Quinn legal assistant at Blacklaws Davis, explain the changes introduced by the Revised Public Law Outline and consider their effectiveness in overcoming the pre-existing problems in care and supervision proceedings.

Christina Blacklaws and Karina Lickorish Quinn, Blacklaws Davies

'The Practice Direction Guide to Case Management in Public Law Proceedings' [2008] 2 FLR 668, more commonly known as the 'Public Law Outline' or 'PLO' has been revised with effect from 6 April 2010. The purpose of this article is to describe the changes, examine their purpose and consider their effectiveness in contributing to the resolution of some of the problems with which practitioners are all too familiar. 

The revised PLO has three main features: elaboration of the 'Timetable for the Child' principle, reducing the burden of documents required at issue of proceedings, and streamlining the PLO forms.

As before, the PLO applies to care and supervision proceedings, and it is still the case that the PLO will not apply to emergency protection order proceedings. The PLO will not act retrospectively, but only for proceedings issued since 6 April 2010.

The PLO brings important benefits in terms of clarifying expectations of parties to proceedings and setting aims. However one of the PLO's main aims, reducing delays in proceedings, is not being met, and is unlikely to be met without holistic investment in the family justice system. Merely tackling burdensome paperwork will not be enough to truncate the long timescales of care and supervision proceedings because there are problems which need to be tackled that run much deeper into the family justice system: problems such as delays in the appointment of guardians, underfunding, and ineffective inter-agency co-operation.

The Road to the Revised PLO
In November 2003 the 'Protocol for Judicial Case Management in Public Law Children Act Cases' [2003] 2 FLR 719 was published. Although the Protocol was not a fresh start but "a collation and distillation of best practice", it is a logical place to start our journey to the Revised PLO.
The Protocol was issued to deal with "a large cloud in the sky in the form of delay." The Foreword to the Protocol continued:

"Delay in care cases has persisted for too long. 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 public agencies are left engaged in protracted and complex legal wranglings."

The Foreword went on to recognise:

"Though a fair and effective process must intervene before a child is taken from its parents, we believe it is essential that unnecessary delay is eliminated".

The Protocol set a guideline of 40 weeks for the conclusion of care cases. The progression of the case was split into six steps, with deadlines set.
In May 2006 the Department for Education and Skills published the 'Review of the Child Care Proceedings System in England and Wales'. The Review identified, as of "serious concern": unnecessary delay, families' lack of understanding of the care process and difficulty in engaging with it, the complexity of cases, and the need for better inter-agency working.

'The Practice Direction Guide to Case Management in Public Law Proceedings' [2008] 2 FLR 668 or 'PLO' came into force on 1 April 2008 as one of five changes aimed at transforming children's proceedings, including public law children proceedings. Also issued was a Practice Direction on the use of experts, new funding for parents who have received a pre-proceedings letter from the local authority, and changes to public law fees.

The fifth change was 'The Children Act 1989 Guidance and Regulations: Volume 1', issued in March 20081.  Chapter 3 in particular deals with care and supervision proceedings and Annexes 1-3 provide a template pre-proceedings letter, the 2008 PLO, and the 2008 PLO flowcharts. Save for the parts that expressly draw from the original PLO, the Guidance and Regulations continue to be of use.

In July 2009 Patricia Jessiman and Peter Keogh, of the National Centre for Social Research, and Julia Brophy, of the Centre for Family Law and Policy, University of Oxford, published the 'early process evaluation of the Public Law Outline in family courts'2

The Ministry of Justice, in partnership with the then Department for Children, Schools and Families, issued Guidance entitled 'Preparing for Care and Supervision Proceedings: a best practice guide' in August 20093.  The guide has no legal status: it is not statutory guidance. The guide is split into two main parts: after the Chapter 1 introduction, Chapter 2 deals with pre-proceedings practice and Chapter 3 with practice once the local authority has issued proceedings. Much of Chapter 3 will no longer apply, since the revision to the PLO, but Chapter 2 is still of relevance.

The Original PLO
The original PLO set out the overriding objective of "enabling the court to deal with cases justly, having regard to the welfare issues involved." As in non-family civil cases, dealing with cases justly includes dealing with the case expeditiously and fairly, proportionately to the nature and issues of the case, ensuring parties are on an equal footing, saving expenses, and using the court's resources appropriately.

The original PLO set out four stages for the case with deadlines for the tasks that must be completed at each stage.

Stage 1 comprised the issue of proceedings, at day 1, and the first appointment at day 6. Stage 2 covered the Case Management Conference, by day 45, and the Advocates' Meeting no later than 2 days beforehand. Stage 3 set the Issues Resolution Hearing between 16 and 25 weeks, with the Advocates' Meeting between 2 and 7 days before. Stage 4 required the Final Hearing, within 40 weeks since issue.

The original PLO set out various case management tools. As one of these tools, the Timetable for the Child was introduced, but barely developed beyond the explanation that it was to "include not only legal steps but also social, care, health and education steps."

A further tool was the case management documentation, comprising the following eight documents:

1. Application Form,
2. PLO1 Form (Checklist),
3. Schedule of Proposed Findings,
4. Allocation Record and the Timetable for the Child,
5. Case Analysis and Recommendations from CAFCASS,
6. Local Authority Case Summary,
7. Other parties' Case Summaries,
8. Draft Case Management Order.

At issue of proceedings, there was also a lengthy checklist of documents required.

The early process evaluation of the Public Law Outline in family courts (July 2009)
The expressed aims of the study were to describe how the PLO had been implemented and to analyse its impact. It found the application of the PLO by judges and parties, in particular local authorities, varied. However the writers of the study did not feel that implementation of and adherence to the PLO was an end in and of itself: the strength of the PLO was in the skilfulness of its application. Just as important as adhering to the PLO, when appropriate, was knowing when and how to depart from the PLO's requirements when the particular cases needed flexibility.

Various benefits of the PLO were identified when it was used properly, such as enabling focus on key issues from early in the proceedings, reducing delay, and ensuring parties were clear as to what was expected of them and what they could expect. 

The Dark Cloud of Delay
In terms of delay, the study found that 70% of the sample cases were concluded within 40 weeks and 84% within 50 weeks. However the writers were keen to stress that these findings were from non-random samples and therefore should not be regarded as indicative of the length of cases in general.

Their caution is well founded: on 9 August 2010 Barnado's published figures indicating that children caught up in care or supervision proceedings waited up to 65 weeks for a decision on their case. According to their figures, care and supervision cases in the county courts average at 57 weeks and cases before family proceedings courts average at 45 weeks4.  During these periods the children may be needlessly removed from their families or left with their families at a risk to them.

Since the PLO has not, in and of itself, been able to rectify the problem of delay, it is worth questioning whether it is effective to focus directly on the 'dark cloud of delay' or whether we should now be addressing its causes.

The study found that compliance with the PLO declined as the stages progressed. Whilst most cases had the First Appointment within 6 days, only a third had the CMC within 45 days and only a quarter had the IRH within 25 weeks. Since delay continues to be of concern, identifying the reasons for and addressing the slippage that occurs as a case progresses will be an important means of rectifying the problem.

Other Darker Clouds
Practitioners questioned as part of the study identified many factors as causative of delay in public law children proceedings. Delays in expert evidence, due to lack of availability, poor instructions, and timetabling, and delays in inter-agency disclosure, such as disclosure by police or medical bodies were raised. Changes in local authority social workers during the course of proceedings were also cited. Those questioned also felt that in some cases the time it takes to address complex issues requiring specialised assessments, sometimes in the community, such as drug and alcohol rehabilitation, was not allowed for by the PLO. The lack of a guardian's report was also referenced as a delaying factor.

The multi-causal nature of delays in public law children cases makes it clear that a much broader package of changes needs to be brought in to bring about a sea change in care and supervision proceedings. Updating documentary requirements and re-working deadlines is only going to scratch the surface of the changes needed.

The study recommended an urgent review of how the front-loaded burden of work may be one of the causes of delays in cases coming to court. However recommendations for urgent reviews were not limited to the documentary burden of the proceedings. The study also felt urgent attention was needed to addressing the accessibility of specialist legal advice to parents and methods of preventing cases coming to court. Perhaps most importantly the study noted grave concerns regarding:

"the welfare, voice and human rights of the child during the pre-proceedings stage. A critical review of this process should include a re-appraisal of the question of independent welfare and legal representation of children at the point at which the Letter before Proceedings is issued. It should also consider the timing of appointment of the guardian. In particular, concerns were raised about:

• frequent lack of guardian input at the First Appointment;
• poor compliance/understanding/completion of the document 'Timetable for the Child' and little evidence that the Timetable for the Child took precedence in the court process." (page 34)

Worryingly, in only 6% of the sample of cases studied did the local authority file a Timetable for the Child at issue, inevitably raising the concern that the child's timetabling needs are not being kept at the forefront of the parties' minds.

Revised PLO – April 20105
The revised PLO maintains the same core structure as the original. The four key stages remain the same, with the same timings.

The Timetable for the Child
The principle of the Timetable for the Child has been expanded upon. It is now for the court to set the Timetable for the Child. The Timetable should include key dates such as a change of school, assessments by professionals, and changes in the child's placement. The applicant is required to provide information about significant steps in the child's life in the application form at issue.

It is expressly provided that

"Due regard should be paid to the Timetable for the Child to ensure that the court remains child-focused throughout the progress of Public Law Proceedings and that any procedural steps proposed under the Public Law Outline are considered in the context of significant events in the child's life." (3.5)

and that

"there will be cases where the significant steps in the child's life demand that the steps in the proceedings be taken at times which are outside the timescales set out in the Outline. In those cases the timetable for the proceedings may not adhere to one or more of the timescales set out in the Outline." (3.7)

It is also now expressly provided in the PLO that aims should be made to link directions hearings in parallel care proceedings and criminal proceedings involving serious offences against the same child. The timing of the criminal proceedings should appear in the Timetable for the Child (3.9).

Streamlining the Documents
The Case Management Documentation list has been whittled down to:

1. The Application Form and its Annex Documents,
2. CAFCASS' Case Analysis and Recommendations,
3. Local Authority Case Summary,
4. Other parties' case summaries.

On the face of it the documentation has been greatly cut down. The court will, however, encourage the use of other documents not prescribed in the above list.

In fact, almost all of the same documentation is still in the early stages of care and supervision proceedings. The only differences are when and how they are presented. Firstly, much of the documentation need not now be provided at issue but may be provided by the First Appointment, 5 days later. Secondly the documentation required at issue is now set out in the Annex of the Application Form rather than in other, additional prescribed forms. The documents now to be annexed to the Application Form are:

1. Social work chronology,
2. Initial social work statement,
3. Initial and core assessments,
4. Letters before proceedings,
5. Schedule of proposed findings,
6. Care plans.

The Allocation Record and Timetable for the Child have been incorporated into the Application Form itself.

The revised PLO continues to require the following checklist documentation by the First Appointment:

• Previous court orders, judgments, & reasons,
• Any relevant assessment materials,
• Initial and core assessments,
• Section 7 & 37 reports,
• Relatives & friends materials (e.g. a genogram),
• Single, joint or inter-agency materials (e.g. Health & Education or Home Office & Immigration documents),
• Records of discussions with the family,
• Key local authority minutes & records for the child (including Strategy Discussion Record), and
• Pre-existing care plans (e.g. child in need plan, looked after child plan & child protection plan).

To say that the revised PLO has diminished the overall documentary burden is untrue. The documentary burden has been diminished solely at Stage 1 of the proceedings.

A further key difference to the documentation is that much of the required documentation no longer need be provided in prescribed form. Forms C1 and C13 are no longer to be used in care and supervision applications. The old PLO1-6 forms are now obsolete, replaced by the new catch-all C110 form.

Meeting PLO Deadlines
The revised PLO continues to require a guardian to be appointed by day 3 of the proceedings. Of all the dates set by the PLO, this is perhaps the most unrealistic. Children in care proceedings in London can be left waiting up to 6 months before a guardian is allocated by CAFCASS. It is the child's solicitor who is then left with the task of trying to discern how to act in the child's best interests, a judgment that is not within their professional competency, in the interim period before a guardian is appointed.

As has already been argued by Christina Blacklaws, over-management and hyper-bureaucracy within CAFCASS, at the levels above its competent and diligent guardians, are resulting in the misdirection of its funds away from the front-line of child representation and into administration and paper-pushing.6

It is not just CAFCASS guardians who are under excessive pressure: currently in London there is a vacancy rate of 33% in social worker positions. This will not only cause delays within proceedings but will also affect the local authorities' capacity to perform during the pre-proceedings stages.

A further obstacle to meeting the deadlines set by the PLO is the over-demand on court listings. Attempting to list a hearing can often mean a wait of several months, which in turn means extending the proceedings for a significant proportion of the child's life. For all the attempts of the PLO to contain the length of care and supervision proceedings, if a hearing simply cannot be listed, the time-frame will be exceeded and momentum lost.

Admittedly it is neither the task of, nor feasible for, the PLO to rectify the CAFCASS problem or require the appointment of new judges. However it is clear that merely focusing on truncating paperwork or squeezing further efficiency out of the parties is myopic. Hopefully the PLO's timetabling, such as the 3-day deadline for a guardian, can highlight the massive problems faced by the family law justice system.

A Long Road Ahead: Further Work Needed
As well as addressing the issues of the internal workings of CAFCASS, addressing inter-agency co-operation, and taking a close look at where the family law courts are creaking, the 'early process evaluation of the Public Law Outline in family courts' study recommended various further studies be conducted. For instance, the study suggested an examination of the PLO's effect on local authority practice be undertaken to understand the reasons behind local authorities' failures to comply with the deadlines and documentary requirements.

However, further study is not needed to be able to identify some of the major problems in the family law justice system. These problems continue to prevent the aims of the PLO and the surrounding statutory guidance being achieved. The family justice system is starved of resources. CAFCASS is in dire need of reform. Until these changes are made the capacity of the PLO to improve public law children proceedings is limited and the "fair and effective process" cited by the original 2003 Protocol is in jeopardy.

Christina Blacklaws is the founding partner of Blacklaws Davies, Chief Assessor of the Children Panel and child care representative on the Law Society Council

Karina Lickorish Quinn is a Legal Assistant with Blacklaws Davies