Involving the Family Court Advisor in Pre-proceedings Practice – Initial lessons from the Coventry and Warwickshire pilot
Dr Karen Broadhurst of Lancaster University and Kim Holt of Bradford university describe the pilot study carried out into the involvement of children's guardians prior to the issue of proceedings.
Dr Karen Broadhurst, Senior Lecturer in Social Work and Social Science, Lancaster University, and Kim Holt, Barrister, Director of the Social Work Programmes at Bradford University.
Ed Mitchell, writing on the topic of the Family Justice Review and public law proceedings in September 20111, suggested that the reform of the family justice system might benefit from closely evaluated pilots that experiment with different ways of working. It is in this spirit that Cafcass, collaborating with Coventry and Warwickshire local authority children's services, stimulated the pre-proceedings pilot. This pilot saw the family court advisor2 introduced into pre-proceedings practice. With the first stage now complete, it is important to consider the learning from this project.
The pilot commenced in January 2011 with the aim of implementing this new role in a sample of 30 cases. The activities of the family court advisor included visiting families, observing parent-child interaction, reviewing case files, entering into case discussion and providing input to the formal pre-proceedings meeting. The pilot aimed to test the added value of the family court advisor in pre-proceedings in regard to:
- improving safe and realistic plans for children where the local authority deems that there is scope for further work with families to reduce risks;
- improving pre-proceedings assessment in order to narrow the issues should cases be brought before the court;
- providing a 'head-start' for the family court advisor to enable earlier more robust oral and written evidence, where care proceedings are issued.
While a pre-proceedings role for the family court advisor clearly begs questions of resources, given that Cafcass is significantly stretched, there are a number of persuasive arguments that provide a rationale for this pilot to which we now turn.
Why involve the family court advisor in pre-proceedings practice?
i) Independent representation for the child
First, and arguably the most critical issue, is the question of independent representation for the child in pre-proceedings. Children and families enter the pre-proceedings process when the local authority (inter alia social workers and lawyers) decides that the threshold for issuing care proceedings is met, but that there is scope for further work with parents and/or extended family to improve the care of children. Thus, these are all 'edge of care' cases and in some cases children will already be accommodated in s.20 interim foster placements. While the Public Law Outline has been broadly welcomed in regard to its potential to increase the engagement of parents, evidence also suggests that social workers can over-estimate the potential for parents to change3. There is substantial concern about drift for children in pre-proceedings4. In regard to children in interim s.20 placements, questions have been raised about the extent to which the Independent Reviewing Officer is able to exercise effective challenge, with a suggestion that the family court advisor should attend looked after children reviews5. As Pressdee et al write: 'in practice some of the worst delays for children have been seen in pre-proceedings'6.
The pre-proceedings meeting is pivotal in the pre-proceedings process. The formal pre-proceedings meeting provides a forum for parties to come together to agree formally a remedial plan that will safeguard the child, through the setting out of clear expectations of respective parties. That the Letter before Proceedings now triggers legal aid for parents has been very much welcomed. However, there is some concern that within this welfare space children's interests are not independently represented. Where parents and the local authority bargain in the shadow of the law, do children's needs become incidental to the pre-proceeding meeting? An early process evaluation of the PLO7 noted respondents' serious concerns about the 'welfare, voice and human rights of the child during the pre-proceedings stage' and called for 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'8. Similar concerns have been raised by the Association of Lawyers for Children. In the association's response to the interim report of the Family Justice Review,9 it was stated that the organisation would welcome moves to strengthen pre-proceedings representation for children and cautioned against potentially collusive relationships between the parents and the local authority in the absence of an independent voice for the child.
ii) Sharing expertise - narrowing the issues to be brought before the courts
Turning to a second argument, we now consider long-standing concerns regarding the variability in quality of social work practice and the implications thereof for pre-proceedings practice. The Public Law Outline calls for the front-loading of assessments in care proceedings. Given concerns regarding delay in the resolution of proceedings, wherever possible, social workers are now required to come to court better prepared with a clearer objective in regard to plans for children. While cases will still be brought before the court on an emergency basis, there is rather less excuse for poorly managed, chronic neglect cases (which are, in fact, the bulk of the work). Indeed, the variability of social work assessment is a key focus of the Family Justice Review with the Government's formal response to that review making explicit that: 'poor or late assessments can lead to delayed or re-scheduled hearings and can result in courts commissioning evidence-gathering elsewhere.'10.
However, the social work profession has reason to be hopeful. The advent of The National College of Social Work marks a distinctively positive moment in the history of the profession, holding out the promise of driving forward an agenda that will surely see improvements in frontline practice. Building on learning from the Social Work Reform Board and the Munro Review, a new agenda emphasises professional autonomy and the need for greater expertise in the workforce. In our own liaison with children's services, we have found far stronger commitment to continuing professional development and a genuine impetus for improvement in frontline practice. The Family Justice Review places great store on collaborative relationships recognising that the courts and local authorities must undertake joint learning if systemic change is to be achieved. In this context, does it make sense to reconsider the boundary between Cafcass and the local authority and to consider how the court social worker's everyday knowledge of the judiciary might be shared? This suggestion is not new, in 1999 Hunt et al11 suggested that local authorities would benefit from examining ways in which the particular expertise of the guardians could more readily enter mainstream local authority practice. Involvement of the family court advisor at an earlier point may be a way of sharing expertise to bolster pre-proceedings assessment, whilst also introducing safeguards for the child.
In many cases the local authority and the family court advisor should be able to assess the situation and further assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the family court advisor is able to bring. This standpoint is very firmly endorsed by Mr Justice Ryder, with the fourth update from the Family Justice Modernisation Programme making clear that 'the court will start from the proposition that only such expert evidence as is necessary to decide a relevant issue...should be ordered'12. However, all too often, additional evidence appears to be directed on account of concerns about the quality of social work evidence, rather than, as one might hope, the need for expertise which falls outside the remit of the local authority social worker or family court advisor. Where care proceedings are brought, the court needs to be assured that a family's capacity to change has been properly evaluated before passing a judgment that will result in a child being permanently removed from his/her birth family. The judiciary also needs to be assured that parents and carers have been given sufficient support and opportunity to improve their care of children. In this context, excellent collaborative working relationships between agencies at a timely point are critical if families are to be given a proper chance to improve. The expertise of the family court advisor can contribute to pre-proceedings practice through advice on the necessary timing and nature of any specialist assessments which should underpin effective pre-proceedings practice. Should diversion plans fail, then it is likely that pre-proceedings assessment will have served to narrow the issues brought before the courts.
iii) 'Head-start' for the family court advisor, bolstering a court advisory role
Third and finally we consider the value of a 'head-start' for the family court advisor. The Public Law Outline changed the reporting requirements for family court advisors. The revised framework now places an obligation on Cafcass to appoint family court advisors to deal with cases from the outset – that is, within two days of the case being set down for directions. Rather than producing a single final report, the family court advisor is required to produce a series of initial, interim and final analyses. For the family court advisors, the emphasis under the Public Law Outline is towards a greater analytic and advisory role to the court. However, evidence suggests that there can be a lack of confidence in the family court advisor's initial oral and written evidence due to a combination of pressures on the Cafass service but also that it takes time to effect meaningful engagement with child and family. An early process evaluation of the Public Law Outline13 called for the timing of the appointment of the family court advisor to be reviewed to enable more robust analyses. Clearly the child cannot sufficiently benefit from party status if the family court advisor is not able to provide a timely steer for the court. To date, the stronger advisory role as envisaged by the Public Law Outline and underscored by the Family Proceedings Rules 2010 has not been maximised. Are local authority documents readily available for review at a timely point (such as case chronologies), does the family court advisor have time for meaningful engagement with children? These pressures will no doubt increase as courts are tasked to resolve more cases within a 6 month timeframe. The latest update from the Family Justice Modernisation Programme14 clearly suggests that at the first contested interim care order hearing a decision ought to be possible in a proportion of cases, that they will follow a standard (26 weeks) pathway.
In any court area, there are likely to be a small percentage of cases that can progress more swiftly through proceedings, but given pressures on reading time, members of the judiciary require excellent advocacy from the lawyers and family court advisor to identify such cases. Even in the context of the likely large volume of 'unplanned' applications, an early steer in regard to any additional assessments is critical both in terms of giving parents a chance to demonstrate improvement but also in regard to alternative permanence solutions for children. Evidence suggests that very many months are lost in court proceedings due to inefficiencies and poor planning at the outset of proceedings. The failure of local authorities to set up assessments in parallel with initiating proceedings or to deal with immediate and pressing issues of placement is well documented and contributes to further delay.
The Family Justice Modernisation Programme15 outlines a clear methodology for more robust judicial case management. However, effective judicial case management and timely decision-making will be greatly aided by the robust advocacy of family court advisors and lawyers. The family court advisor is particularly well placed to ensure that, as far as possible, the timetabling of cases is tailored to the needs of particular children. Wide-ranging investigative powers were bestowed on the family court advisor as a result of the Children Act 1989, which enable practitioners to undertake critical work as independent investigators and informants. It is primarily through the family court advisor that the court can 'exercise its inquisitorial role'.16 Moreover, in contested proceedings, hearings certainly take the form of a more adversarial approach that can lose sight of the child. From our own observations where social workers face a line up of counsel for parents and possibly other family members, it can be difficult to hold one's ground. Here the family court advisor's role is pivotal in reminding the court that this is not just about testing the evidence but retaining a sense that proceedings are also an enquiry into the best interests of the child.
Research highlights from the pre-proceedings pilot
Evaluation of the family court advisor's input in pre-proceedings is now complete (stage 1 of the evaluation). Over the course of the next fourteen months we will track these cases to examine how they fare in regard to successful diversion (closed to pre-proceedings) or case resolution, should cases progress to care proceedings. The pilot cases, referred to as 'Cafcass Plus', will be compared to a sample of 30 comparator cases. Pilot projects typically throw up problems in implementation. In this study gaining parents' consent for the involvement of the family court advisor was difficult and recruitment of cases to the pilot was slow. A number of cases joined the pilot towards the end of 2011. At December 2011, 27 Cafcass Plus cases were recruited which will be tracked until February 2013. To date, only seven cases have progressed to proceedings which is in part due to successful diversion plans, but, in addition, to the fact that local authorities are still working intensively in pre-proceedings to assess parenting capacity. Our findings from Stage 1 are reported in full via the Lancaster University Child Welfare Unit17. Here were present research highlights against the themes discussed above.
In regard to representation for the child, there was considerable support from local authority social workers of having an independent assessment of the case, given anxieties in the management of edge of care cases. While the two local authorities differed in regard to whether they saw a role for the family court advisor in every case or in selected cases, there was consistent support for an independent evaluation of local authority assessment and plans. In particular the family court advisor was seen to add value in cases where there was disagreement in-house about the timing or appropriateness of care proceedings, or where diversion plans in the context of a range of risk factors were creating anxieties. As a corollary to this, we found evidence of the family court advisor supporting and bolstering diversion plans to good effect. In particular we noted that the family court advisor challenged plans that appeared to overload parents with demands and instead called for 'managed opportunities'18 that were both sufficient and realistic. Recent local authority practice has tended towards an increase in 'monitoring visits' in child protection work with less emphasis on practical support - a tendency to signpost families to a range of community services rather than pro-actively manage parental engagement with appropriately tailored help.
Perhaps some of the most surprising findings from this evaluation were comments from respondents about the added value of the family court advisor to the conduct and outcome of the pre-proceedings meeting. Here the family court advisor appeared to fulfil a number of functions, not least that he/she ensured that the meeting maintained a focus on the needs of children. In addition, and on account of her perceived independence, the family court advisor was described as putting the concerns regarding children to parents in a way that they would accept. Similar findings have been reported in regard to the family court advisor's role in care proceedings, where he/she serves as a bridge between parent and the state19. If we conceptualise the pre-proceedings meeting as a potential site for alternative dispute resolution, the family court advisor's role in stimulating parents' engagement with the local authority's concerns is critical. The responses of solicitors who had acted for parents are particularly illuminative - the majority of whom supported early involvement of the family court advisor. On account of the family court advisor's independence, parents' legal representatives stated that he/she was in a unique position to put the case for the child without compromising any alliance to the parents (as might be the case for parents' advocates) or serving to inflame existing tensions (as might result from the local authority's input). In addition, the presence of the family court advisor as court social worker was seen to signal an important message to parents about the seriousness of concerns. Some parents' legal representatives suggested that the pre-proceedings meetings might be better held in a room in the court.
Participants also placed much value on 'a better understanding' at the outset between the family court advisor and the local authority. Even where the family court advisor simply ratified a decision, this appeared to increase local authority social workers' confidence in regard to case work. Similarly the family court advisors stated that where they could see that extensive work had been undertaken by the local authority to support parents, they would feel more confident in opposing parents' legal representatives requests for further independent assessments.
Perhaps the strongest evidence in this pilot came from the family court advisors themselves who were unequivocal in the value of a head-start afforded by the pilot. As the following excerpt illustrates, the family court advisors saw huge value in pre-proceedings involvement:
'...it's absolutely where we need to be – in pre-proceedings. We need that head start and it enables us to give advice that will narrow the issues brought before the courts. While local authorities might not be in a position to take on all our advice due to resource issues...at least we can make some progress at a timely point. Otherwise, cases come into court, and it's start again. Then you are into multiple hearings, duplicate assessments and it's delay all the way...'
All the family court advisors embraced the possibility of being able to provide a stronger advisory role to the court where they were involved pre-proceedings. They felt that they would be able to identify cases that might be listed for fast-track, advocate more strongly against unnecessary assessments, ensure that the court was, from the outset, focused on an appropriate time-table for the child and resist any tendency in the lower courts to give too much latitude to parents' legal representatives.
In the face of best efforts of both local authorities and the family court advisors, we found a number of obstacles still undermining effective pre-proceedings practice. In the above excerpt the family court advisor touches on a critical issue consistently expressed throughout the pilot, which is the problem of ongoing difficulties in procuring appropriate specialist assessment from adult and health services during pre-proceedings. For example, where the local authority considers learning disability to be a factor, then it is imperative that family support plans are informed by a clear understanding of parental capacity. Despite the obligations under the Children Act 2004, we found that support from partner agencies was not always forthcoming which meant that good advice from the family court advisor could not always be acted on.
The family court advisors in our sample were a particular group of highly experienced family court advisors, whose knowledge of the court system was very apparent. They were all confident in constructively asserting an independent opinion. The process of the pilot, in itself, appeared to afford much opportunity for constructive, shared learning. In Jean McCausland's20 study of the role of the Guardian ad Litem, she stated that often the court advisor's contribution to care proceedings was ill-understood given a focus on definitive outcomes for children. In our full report we offer a number of illustrative case examples that enable the rich detail of the family court advisor's contribution to emerge.
In an ideal world – and if the practice of front-loading of assessment as envisaged by the Public Law Outline is to continue – then earlier involvement of the family court advisor makes sense. However, given resource constraints, the question of whether there is merit in legislative change that would enable discretionary involvement of the family court advisor in selected cases ought to be debated. For example, in the context of pre-birth assessment it makes absolute sense to involve the family court advisor at an earlier point and the same can be said of cases of repeat removal of children. There would certainly be value in regard to a head-start for the family court advisor in these cases. The research team will report again as cases are tracked and definitive outcomes are achieved that enable clear comparison of the Cafcass Plus cases and the standard cases. From preliminary observations of the Cafcass Plus cases that have progressed to court at this point (seven cases), it is clear that comprehensive pre-proceedings work has been undertaken in two cases and that a plan for adoption is clear and well evidenced. In the other five cases, these have all progressed to court on an unplanned or crisis basis and the likely trajectories of the cases through court will be more complicated (although the issues may have been narrowed by the family court advisor's involvement). It is highly likely that during the life of this pilot, further 'planned' applications for care proceedings will be made, and these cases will test the extent to which the early involvement of the family court advisor does lead to more timely case resolution. The family court advisor is simply one small cog in the machinery of the family justice system – where a normative pace has evolved in local courts based on an expectation of poor or incomplete social work assessment, change may be difficult to effect. As we write, Cafcass has announced a further increase in care demand with some 10,000 care applications recorded between April 2011 and March 2012. This will increase the tyranny of immediate demands and without further government investment, leave even less time for the kind of experimentation that might yield important new learning.
 Ed Mitchell (2011) Family Justice Review and Public Law Proceedings: Time to Experiment, Seen and Heard, 21(3), pp46-47.
 The architects of the pilot had adopted the term family court advisor prior to the start of our evaluation work. While studies often use the terms children's guardian or guardian ad litem, for the sake of simplicity we have kept to the language of the family court advisor throughout.
Right on Time: exploring delays in adoption, Ofsted, http://www.ofsted.gov.uk/resources/right-time-exploring-delays-adoption. See also concerns raised by the Fostering Network in 2010 regarding the management of foster placements were children are in legal proceedings. http://www.aep.org.uk/system/files/private/bursting_at_the_seams.pdf
 Arnold, N (2011) Independent Reviewing Officers: Past, Present and Future, Seen and Heard, 21(4) p12-23.
 Presdee, P., Vater, J., Judd, F., & Baker, J. (2008) The Public Law Outline: The Court Companion, Bristol: Family Law. (para 2.70, p.31).
 Jessiman, P., Keogh, P and Brophy, J (2009) An early process evaluation of the Public Law Outline in family courts, Ministry of Justice Research Series 10/09 (p.34).
 Association of Lawyers for Children (2011) Response to the interim report of the family justice review, http://www.alc.org.uk/uploads/Family_Justice_Review_-_Interim_Report_response_22_June_111.pdf, (para 16.4).
 The Government Response to the Family Justice Review, (para. 45).
 Hunt, J., Macleod, A. & Thomas, C. (1999) The Last Resort, Child Protection, the Courts and the 1989 Children Act. London: The Stationery Office. The Family Justice Modernisation Programme also emphasises the importance of an inquisitorial approach in family law.
 The Family Justice Modernisation Programme: Fourth Update from Mr Justice Ryder, March 2012, p2.
 Ibid point .
 Ibid, point , p3.
 Ibid point .
 Ibid, point  (p. 213).
 Lancaster University Child Welfare Research Unit - http://www.lancs.ac.uk/fass/groups/cwru/.
 Safeguarding Children Across Services: messages from research on identifying and responding to child maltreatment, https://www.education.gov.uk/publications/standard/publicationDetail/Page1/DFE-RB164.
 Clark, A & Sinclair, R (1999) The Child in Focus. The evolving role of the guardian ad litem, London: National Children's Bureau.
 McCausland, J. (2000) Guarding Children's Interests: The Contribution of Guardians ad Litem in Court Proceedings, London: The Children's Society.