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Practitioners ‘positive’ about the revised Public Law Outline

Call for more flexibility over timing of CMH

Research carried out by University of Plymouth and Ipsos MORI on behalf of the Ministry of Justice suggests that practitioners have welcomed the changes brought about by the revised Public Law Outline.

The research was carried out between August and November 2013 shortly after implementation of the revised PLO which used workshops, in-depth qualitative interviews with family justice practitioners, and the results of an online survey completed by members across all Local Family Justice Boards in England and Wales.

The aim of the research was to explore the perceptions and experiences of implementing the revised PLO at a local level. Specifically, it sought to understand how the changes to the PLO were perceived to be affecting pre-proceedings work and court proceedings, and any impacts on the wider family justice system.

The key findings are as follows.

Practitioners were very positive about the drive to reduce the time that public law cases spent in court. Many felt the revisions to the PLO were a much-needed change, with better focus on children's timelines and their outcomes. Practitioners felt that the revised PLO and associated guidance and training had helped secure substantial progress in ensuring, where possible, that cases are completed within 26 weeks.

It was felt cases were being conducted in a more focused and efficient way under the revised PLO. Children's needs were felt to be identified earlier in proceedings, with parties seen to be acting quicker and levels of delay, particularly in court proceedings, being reduced.

Practitioners described challenges they had experienced during the early stages of implementation and many felt it would take time to adapt to the new requirements. However, practitioners believed that the positive aspects outweighed any challenges, and there were very good levels of engagement and motivation to 'make this work'. Practitioners were keen to stress that the reduced timeframes had encouraged and facilitated joint working and improved communication between agencies.

Practitioners highlighted some areas that may require further consideration. Some felt that the focus to complete cases within 26 weeks may not necessarily reduce the overall time that children are living in uncertainty. This may be due to a potential increased amount of time that cases spend during the pre-proceedings phase and because final orders made at 26 weeks may not always result in cases being closed.

Pre-proceedings 
An increased drive to complete court documentation and assessments earlier during pre-proceedings and a shift to provide more focused and analytical local authority documentation under the revised PLO were welcomed. Most practitioners believed that local authorities were delivering the required documentation at the outset of cases.

Practitioners were particularly positive about the emphasis on local authorities owning and asserting their cases, with less reliance on independent experts to provide key evidence. However, a number of practitioners believed that some social workers were struggling to adopt a more analytical approach to the chronology and social work statement, and felt that further training may be required. Some social workers questioned the extent to which they were able to build a compelling case without including a full documented history of events. Practitioners felt that some social workers will require further time to adapt and feel more confident in their assertions.

Some practitioners expressed concern about a perceived level of additional delay in the pre-proceedings phase under the revised PLO. There was a perception that some cases, including some deemed to be pressing, were being held for longer than they should before an application was submitted to court, while the local authority compiled documentation and completed assessments. There was a concern that this potentially transferred delay for the child.

Practitioners largely agreed that there had been a decline in the instruction of independent experts, and this change was welcomed. The majority of practitioners felt that expert evidence was being restricted to what is necessary, and this enabled the social workers to be viewed as the key expert in the case. Conversely, some practitioners felt that 'the pendulum had swung too far the other way' and voiced concerns that the judiciary may be too quick to dismiss the appointment of experts.

Practitioners reported that a greater emphasis had been placed on identifying appropriate family members and alternative carers at an early stage of proceedings. This was felt to be yielding positive results, preventing some of the delay that can occur when wider family members become involved late in a case.

Some concerns were raised that parents and their legal representatives are put under pressure by the positioning of the CMH at Day 12, giving them a relatively short amount of time to engage and consult with legal advisers before this first key court hearing. Private practice solicitors felt that engaging with families early and in depth during the pre-proceedings stage may be beneficial for alternative residence arrangements to be explored and to ensure that key evidence can be gathered and presented at the CMH.

Court proceedings
Under the revised PLO, the CMH must be held no later than Day 12 and should give detailed case management directions to enable cases, where possible, to be completed within 26 weeks. Practitioners overall felt that the CMH was more focused and effective than first key hearings held under the previous PLO, with all parties having a clear grasp of the key issues in the case. Practitioners believed that this meant few cases required a further CMH.

Practitioners stressed that certain cases are likely to be particularly complex and require a more flexible approach with the timing of the CMH. While practitioners were confident that there is sufficient flexibility within the revised PLO to accommodate such cases, they requested further clarification on when and how a more flexible approach to the PLO timetable is likely to be needed to ensure a consistent approach is taken across different court areas.

Practitioners highlighted a range of 'typical' case types that may require flexibility and for which the 26-week timeline may present a challenge. These were complex cases; for example, where there was alleged sexual abuse, parallel criminal proceedings or those involving multiple children. There were calls from practitioners for greater flexibility to be applied to cases where parties have a disability or capacity issue.

There were some concerns that the reduced timeframes may impact on the ability of families to demonstrate sufficient change, for example in cases with drug or alcohol issues. A further issue was that the reduced time for the court to consider evidence may be leading to a possible shift in the pattern of orders made. While there was no clear evidence to determine this, there was some concern over perceived increased use of care orders at home and Special Guardianship Orders.

Impact on the wider family justice system 
While many practitioners felt that the changes within the revised PLO had increased their workloads as they adapted to the new requirements, they did not see this as an insurmountable challenge. Indeed, many practitioners felt that workloads had not increased overall, but the increased front-loading of pre-proceedings and the reduced timetable for court proceedings meant that their workloads were more concentrated. Concerns were expressed that courts did not have sufficient capacity to list hearings in line with the revised PLO timeframes.

Areas for further consideration 
In light of the findings, key areas proposed for further consideration include the need for additional flexibility to extend the CMH beyond Day 12, and greater clarity around complex cases that may require extensions beyond 26 weeks where the interests of the children require it. Finally, practitioners felt that the Case Management Order form was repetitive and required significant revisions.

Further research and a thorough examination of timeframes and case outcomes after the revised PLO is fully established will provide a more comprehensive assessment of the overall impact of the changes. At the time of the research, the changes have been well received and practitioners were confident that the revised PLO will contribute positively to a more efficient and effective process as public law cases move through the courts.

The research document is here.

25/4/14