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Getting the Most Out of Independent Reviewing Officers in Care Proceedings

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford, argues for a more involved role for IROs in care proceedings.

Gabrielle Jan Posner, barrister and recorder, Trinity Chambers Chelmsford

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford 

In December 2017 Cafcass issued a practice note entitled Cafcass and the Work of Independent Reviewing Officers. As somebody who is involved in care cases day in and day out, I was prompted by reading this practice note to ask myself whether I have ever seen an IRO or heard directly from one in any of the cases in which I have been involved? I have racked my brains, but I cannot think of any instance.

If a child is subject to an interim care order, or accommodated under the Children Act 1989 section 20, the IRO will chair the looked after child reviews prior to the final hearing and the minutes should contain any views expressed by the IRO. It is always worth requesting minutes of LAC reviews, as well as of child protection meetings and core group meetings because, without suggesting any bad faith, these may cast a somewhat different light on the situation from the social worker's statement. Moreover not all professional people dealing with a family necessarily hold all the same views.

A model care plan should include a paragraph setting out the views of the IRO regarding the proposed arrangements for the child. This is not one of the sections that is prescribed in the regulations (LAC(99)(29)), but many local authorities routinely include this information. If the outcome of a care case is to make the child the subject of a full care order, with or without a placement order, once the court has dropped out of the picture, the implementation of the care plan will start and it is then that the IRO is left as the professional with oversight of the child's welfare through the LAC review process. To my mind, it is axiomatic that the views of the person responsible for monitoring the implementation of the care plan should be within that care plan. Therefore,  if  there is no section of the care plan dealing with this, try to ensure that it is included.

A summary of discussions between the children's guardian and the IRO will sometimes be contained in the final analysis and recommendations of the children's guardian, but in my experience this does not happen consistently, but  mainly when there is disagreement between the local authority and the children's guardian and / or a particular feature of the case that makes it difficult, for example, a sibling group of different ages with different needs where the question of separation has arisen or  a teenager with their own strong views about their future.

In the section headed IRO's and Cafcass in Care Proceedings the new practice note states at paragraph 2.1 that:

"As a minimum, the children's guardian will: (my emphasis)

d. consult with the IRO as part of the ongoing analysis and ascertain whether the IRO has any concerns about the care planning process in the case. For example where a concern exists but cannot be resolved, have any stages of the local dispute resolution process been triggered, or have any complaints or representations been received about the child's case?

e. ensure they are informed of review meetings and be aware of any planning meetings that take place and liaise with the IRO following such meetings that take place and liaise with the IRO following such meetings to discuss any decisions that are made. The IRO will alert the children's guardian to any issues that arise in planning and review meetings

f. liaise with the IRO if appropriate on the wishes of the child, the care plan, and issues which may have been raised at court and ensure that there is an independent assessment of the child's best interests."

When I read this, I thought that  is a helpful development: they are placing greater emphasis on the IRO's views. Then, to my surprise, I discovered that the previous Cafcass practice note of April 2011 is in almost identical terms. If these consultations happen routinely, in my experience, they do not always find their way into the children's guardian's report. The practice note refers to communication between Cafcass and the IRO and ensuring the IRO receives documentation, but it does not provide for the contents of the discussions to be set out in the report.

I have been unable to find any mechanism within this practice note or any other guidance for ensuring that the views of the IRO are in terms made known to the court and the parties to the care proceedings. I think this is unfortunate. The IRO will know the child and their family well if the child has been accommodated under section 20 or subject to an ICO for any length of time. Therefore, why do we not have the benefit of this person's views, directly expressed, within the court arena, rather than a second-hand account from the social worker and / or the children's guardian, if they do discuss the case with the IRO and choose to share  their views?

There may be an argument for saying the IRO has a different role from those within the court process and the clue is in the word "independent". However they are not truly independent inasmuch as they are selected by and paid for by the local authority. Again I am not implying bad faith and I know several independent social workers and retired children's guardians who are employed as IROs,  However, in my experience it does tend to be assumed that the IRO  is falling into line with the local authority unless the children's guardian tells us otherwise when that may not, in fact, be the whole picture.

I do not see anything wrong in asking for the IRO's views to be conveyed to the court in a short letter. That would not make them an automatic witness and subject to cross-examination any more than a court-appointed expert, who, as is well known, should not be called these days without the court's permission.

Paragraph 2.3 of the new practice note is again almost a verbatim repetition of the earlier version, but is worth reminding ourselves of it.

"In all cases where the child remains looked after following proceedings, the children's guardian shall have a final discussion with the IRO about the case with a view to identifying any outstanding issues on particular matters that should be kept under review. It will be important that this is part of the closing of cases by the children's guardian and not a drift into extended involvement."

The rest of the practice note deals with cases that should be referred by the IRO to Cafcass when things are going awry for a looked after child. Clearly this is very important. Once the court, the lawyers and the children's guardian have all departed the scene, this is where the IRO's role is key for children subject to long term foster care, children's homes and residential communities. As well as the Independent Reviewing Officer's Handbook, I have found a very good booklet entitled Young People's Guide to the Independent Reviewing Officer's Handbook which is written by the Office of the Children's Rights Director and approved by the Department for Education.

The aspect of the IRO's role after the conclusion of care proceedings and the court hands over appears to be subject to a considerable body of guidance. However I feel that in cases where the IRO is involved before the court hands over, an opportunity has been missed to ensure that we have their own directly addressed views. The views of somebody with a wealth of experience and knowledge, who may not be in agreement with the other professionals, are potentially being overlooked.

I would be keen to see the ascertaining of the IRO's views formalised and a short questionnaire devised for the IRO in every case.