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Independent Reviewing Officers – myths and misunderstandings continue

Professor Jonathan Dickens, University of East Anglia, Norwich, considers some of the strengths and limitations of the IRO service, drawing on recent debates and the findings of a research study conducted between 2012-14.

Professor Jonathan Dickens, University of East Anglia, Norwich

Jonathan Dickens is professor of social work at the University of East Anglia, Norwich. In 2012-14 he led a research study into care planning and the role of the independent reviewing officer, funded by the Economic and Social Research Council. In this article he considers some of the strengths and limitations of the IRO service, drawing on recent debates and the findings of the research study.

There has been scepticism about the independence and effectiveness of 'independent reviewing officers' (IROs) ever since the role was introduced in England and Wales in 2004. IROs conduct regular reviews of children in the care of local authorities. Their core tasks are to monitor the LA's performance as the 'corporate parent' for each child, to participate in the child's review, and to ensure that the child's wishes and feelings are fully considered; but they are 'not to manage the case, supervise the social worker or devise the care plan'; and ' . . . the review cannot tie the hands of a local authority in relation to some issues, particularly where there are resource implications' (IRO Handbook, paras 1.22, 3.70).

IROs are qualified social workers who are independent of the line management of the case, but still employees of the local authority – hence the doubts about the reality of their independence. There was particularly searing criticism in the judgment of Mr Justice Peter Jackson in the case of A and S v Lancashire County Council [2012] EWHC 1689 (Fam). But not all the criticisms are fair or well founded. Recent examples of this are in the arguments that were put forward in support of the 'exemption clauses' in the Children and Social Work Bill, and in Lord Justice McFarlane's speech on 'the balance between child protection and the right to family life', delivered as the Bridget Lindley OBE Memorial Lecture in March 2017. Whilst there is certainly room for improvement in specific cases and in the overall operation of the system, and practice may not always live up to expectations, it is important that criticisms and proposed reforms are based on accurate knowledge and understanding.

'Power to test different ways of working' and the role of the IRO
One of the most controversial aspects of the Children and Social Work Bill, eventually withdrawn by the government, was the proposal to give powers to the Secretary of State to exempt a local authority children's services department from certain statutory requirements for up to six years (three years, possibly followed by a subsequent three). The purpose was 'to test different ways of working with a view to achieving better outcomes . . . or achieving the same outcomes more efficiently' (originally clause 15 of the bill). There were strong protests against these proposals for undermining children's rights and protections, in particular by the organisation 'Article 39'. The proposals were overturned by the House of Lords in November 2016 but then reinstated by the government (in modified form, and without the stated objective of greater efficiency) at committee stage in the House of Commons. Subsequent opposition from key figures including Professor Eileen Munro, led the government to withdraw the proposals in March 2017. 

Some of the statutory requirements that were most debated as suitable for exemption, concerned the role of the IRO and the requirements for regular reviews of all children in care. In the aftermath of the House of Lords' decision, the Department for Education published a document entitled 'Power to test different ways of working: fact sheet' (DfE, 2016). The first example it gave of how the proposed power might be used concerned the role of IROs. It said '… at present legislation states that an independent reviewing officer must be present at all reviews for every child. Some children tell local authorities that they want to chair their own reviews, or that they do not like having an IRO present'.

But in fact, since 2015 it has not been necessary for an IRO to attend 'all reviews for every child'. The care planning regulations and guidance were amended that year, so that review meetings of children who are settled in long-term foster care only have to take place once per year (if that is right for the child). There should still be a review every six months, but the intermediate one need only involve consultation and information gathering, and a review of the information received – not a meeting.

As regards children chairing their own reviews, the IRO Handbook, which is statutory guidance in force since 2011, already encourages IROs to allow and enable children and young people to do this, at least for part of the meeting, if that is appropriate. Our research into care planning and the role of the IRO found examples of sensitive and skilled practice in this area, and strong commitment from IROs to do this if appropriate (Dickens et al, 2015). Even if young people do not chair the review meeting, it should be as 'child-centred' as possible. But there is a complex set of tasks that the review has to fulfil, and it is not always easy to balance all the requirements. The main obstacle that most IROs said made it hard for them to involve children as effectively as they would like to, was their heavy workload, which limited their opportunities to prepare children. Shortage of suitable venues and the limitations of children's consultation forms were other frequently mentioned constraints. But changing these does not require a change to the law.  

Certainly some children and young people do not like attending their reviews – after all, as several IROs commented to us, it is a strange situation. Most children do not have to endure formal meetings with their parents or carers to review their progress and plans. But there are ways of supporting children to attend, or getting their views as part of the review process rather than requiring them to attend the actual meeting. And most of the young people we interviewed felt that it was worth attending their reviews, even if they did not particularly enjoy them.

Referrals to Cafcass
As for Lord Justice McFarlane's speech, it was extensively reported for its comments about adoption, but it was wide-ranging and there was also a brief mention of IROs (page 11 of the transcript). He recounted how IROs were created as a statutory requirement in the aftermath of the 'starred care plan' case in the House of Lords in 2002, but it is worth remembering that a number of local authorities already had specialist reviewing officers, even before then. He described the IRO as being 'a guardian of the care plan', who can trigger a return to court if necessary, and said 'My understanding is, and I will be corrected if I am wrong, that there have been no occasions where an IRO has brought a case back to court under the provisions'. But it is not actually up to the IRO to bring cases back to court. If agreement cannot be reached within the local authority, the IRO has the power to refer the case to Cafcass, and a Cafcass officer will then be appointed to deal with the case. He/she will make enquiries to try to resolve the matter. If these are unsatisfactory, Cafcass may take the case back to court, not the IRO.

There have been twenty formal referrals to Cafcass between 2004 and March 2017 (up from ten in February 2015). None of these had actually been taken to court by Cafcass, but most had been resolved through correspondence and discussion with the local authority involved. The Cafcass officer did not always agree with the IRO (three cases) (information supplied by Cafcass). 

The low rate of referrals is one of the reasons why there have been doubts about whether IROs are really offering an effective 'challenge' to local authorities. But the fact that even the cases that went to Cafcass were resolved without going to court, gives a clue as to how the whole system works. All the way through, there are pressures and expectations to resolve matters through negotiation and agreement. The IRO Handbook repeatedly advises IROs to try to use informal approaches first. If these do not work, or are not appropriate, each local authority is required to have a 'local dispute resolution process', to enable matters to be escalated to relevant levels of management, to try to resolve them in-house. Evidence submitted by NAIRO (the National Association of Independent Reviewing Officers) to the Public Bill Committee in January 2017, for the debates about the Children and Social Work Bill, gives a range of examples of successful challenges by IROs. Our study found that IROs were prepared to use formal steps when they judged them necessary, but most of the time, matters were dealt with through discussions and advice. As an IRO put it in one of the interviews for our study:

"What they don't take in consideration, before an IRO gets to challenge at Cafcass level, there's a lot of hoops to be jumped through. So initially you go to the social worker and try, just on that level, to iron out any problems; team manager; then you'd be involving my manager, then you'd be getting involved with, probably, service managers, potentially assistant directors. And usually, any disputes we've had, we can get solved at that sort of level . . . "

But the discussions are always with the possibility (and perhaps explicit threat) of matters being taken further if agreement cannot be reached. This is a familiar process in many areas of professional and personal life, where people are usually expected to try to reach agreement or use mediation to resolve differences, with the potential for legal action in the background. Certainly this sort of process should be very familiar to lawyers, for whom negotiations and settlements 'in the shadow of the law' are a core element of their working lives. Presumably most lawyers would assert that this does not affect their independence or determination to get the best outcome for their client, although some of the clients may not always see things that way. And although some of the young people and parents who we interviewed were suspicious about the 'independence' of IROs, most seemed to appreciate their distinctive role. One mother, whose child had been placed for adoption, said 'I think she [the IRO] is on everyone's side; she was a little bit for us and a little bit for the social worker, a big part for [my daughter] of course, I think she is trying to do the best for her, yeah'.

Lord Justice McFarlane also comments on review meetings being held in foster homes, with, he says, 'the result that parents are often excluded from the review meeting'. Our study found that reviews were held in a range of settings, with pros and cons to each. The most frequent venue was the place where the child was living (foster or residential care), then schools, local authority offices and community facilities. Children were most likely to attend if it was in the place they were living, and this also made it much easier for them to attend part of the meeting, or to be 'half in and half out'. So the example neatly illustrates some of the tensions of the IROs role – that they are required to involve children and parents (and carers, and relevant professionals) in the review process, and this may not always be easily achieved. One solution is to have the review meeting in separate parts, but the risk of this is that the children or parents may feel the 'real' decisions were made in the part they did not attend. 

The challenges of the role and a better basis for change
The point of these examples is to show some of the balancing acts required of IROs. One is to hold a child-friendly review, but also to cover all the items on the agenda, some of which might be uncomfortable for the child. Another is to involve children, parents, carers and professionals – so there are many considerations to be had about venue, timing and attendance. Another is that IROs are expected to deal with matters at an informal level wherever possible, but also to be 'challenging'. It is also important to remember that IROs are not line managers for the case, and cannot make decisions about resources (the IRO Handbook explicitly excludes that, as noted at the start of this article).

There is room for improvement in the way that the IRO system operates. Our study did find examples of delays in implementing the decisions made in reviews, and recommendations coming round again in subsequent reviews with no clear account of why they had not been achieved, or what was to be done now to ensure they were. There were differences between IROs in the way they performed their job. Some individual variation is inevitable, but training and supervision can tackle problems and ensure the spread of good practice. Furthermore, there is an untapped potential for the IRO service to make a larger contribution to local authority strategic planning and good practice, by highlighting common issues across cases. But improvements require an accurate diagnosis of the problems. Three things are important.

First, detailed knowledge of the primary legislation, regulations and guidance. Second, an informed understanding of the context. It is not realistic to hold one individual, or one professional role, responsible for all the difficulties of the looked after children system, where local authorities and their partner agencies are under huge pressures and have tightly limited resources (financial and personnel), and where the children and their families have very great needs and often troubled behaviour. The challenges are well captured in the March 2017 report of the All Party Parliamentary Group for Children, No Good Options. It is also worth remembering that despite the much-publicised shortcomings, care can actually be a life-improving and positive experience for children (for example, see the recent report by the University of Bristol and Coram Voice, Our Lives, Our Care, 2017). Third, there needs to be an informed understanding of practice, the processes and practical reasoning which mean that most cases will be settled without reaching the highest levels of the dispute resolution process. Simply to judge the service by the number of cases which go to court, is to miss this bigger and much more nuanced picture.

The full report of the UEA research into care planning and the role of the independent reviewing officer is available free of charge on the website of the UEA Centre for Research on Children and Families. The website also has a research briefing and powerpoint presentations of the findings.

An article about professional independence based on the research was published in the journal Children and Youth Services Review in December 2016. It is available online, free of charge.