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Sir Andrew McFarlane explains why he won’t use the word "Crisis"

Addressing the rise in public law cases is the President’s ‘Number One priority’

Sir Andrew McFarlane, the President of the Family Division, has said that it is not helpful to those working in the family justice system for the word "crisis" to continue to be used. He noted that his predecessor, Sir James Munby, had used the term when referring to the inability of the court system to sustain the prompt and timely determination of public law children cases.

The President was addressing the annual conference of the Association of Lawyers for Children.

Whilst Sir Andrew considered that the former President was entirely justified in his assessment of the impact of the rising numbers on the Family Court, Sir Andrew would avoid the word "crisis" in respect of what is clearly "a continuing open-ended situation". He added that there has never been any suggestion that the higher numbers, as a single factor, indicates that the childcare sector as a whole is in "crisis". Indeed, he said, the rise in the number of children who are now on the radar of local authority social workers might well suggest that, rather than being in crisis, the system is functioning properly.

However, having embarked upon a tour of visits to every Designated Family Judge court centre in England and Wales, he had concluded that all the professionals working within the family justice system were "attempting to work at, and often well beyond, capacity". He added that he was concerned about the long-term well-being of all those who are over-working at such a high and unsustainable level.

Consequently, addressing the rise in the increasing number of public law cases before the family courts will be his Number One priority.

He said:

"Over the course of recent weeks, as I have moved from court to court, I have become increasingly clear that the area which would most fruitfully benefit from close consideration by me, as President, is that relating to the pre-proceedings period where, in the days, weeks or even months before, on a particular day, a public law application under CA 1989, s 31 is issued by a local authority, the decision to do so is made."

Sir Andrew cited the recent report by Isabelle Trowler. That paper drew attention to the increased number of cases which result in a child going home at the end of the court process, either under a care order or a supervision order, and to a further cohort of children who are placed with other family members. The paper questions whether "families subject to these thin, red line decisions, because the decision to remove a child from his or her parents could go either way, should be diverted away from court in the first place." The President said that the report chimed with his own developing thoughts on the matter.

In that context, he considered that if pre-proceedings practice is to be looked at again, particular consideration should be given to whether and to what extent Cafcass should be involved pre-proceedings and whether the current provision of legal aid for parents at this most important stage should be increased.

Sir Andrew went on to address cases subject to a final order. He said that there is plainly a need for further work to be done to understand both the trend towards the rehabilitation of children at home under care orders, which "varies as an outcome radically across the country, and the trend towards greater use of special guardianship".

He said:

"I wonder whether these developments may indicate that the 26-week deadline, as set by statute in CA 1989, s 32(1)(a), is, in this respect, generating an undesirable consequence. In many cases, the making of a final order at, or even well before, 26 weeks will be unremarkable and in the best interests of the child. Where, however, the child is to be rehabilitated home, or placed with relatives or friends with whom he or she has not previously lived, the child's welfare may justify a further period of oversight by the court, within the ongoing care proceedings, rather than the making of a final order simply because, as it were, 'the music has stopped' with the expiration of the 26th week. The 26-week long-stop within which care proceedings must be concluded is not absolute."

For Sir Andrew's speech, click here.

26/11/18