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The problem of the hanged man

 

Bear with me, this is going somewhere.

So,  a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

 

And at the end of the week, he is not hanged, and goes free.

 

Answer at the end.

 

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

 

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

 

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

 

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

 

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

 

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

 

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

 

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2  (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

 

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

 

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

 

So, by week 6, the  expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

 

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

 

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”.   The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

 

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

 

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

4 responses

  1. walklikeacat

    I agree with you about the time for experts and the sheer ludicrousness of expecting a final hearing to be available with guardian, expert, judge and courtroom available within 2 weeks of IRH.
    Other big issue for me is extended family as alternative carers. Reality is that never get to assess them before issue – because parents will not agree to let social workers tell them what is going on. So have to start from scratch at first hearing. So give parents 2 weeks to accept reality and give some names and addresses. Never happens. Give them another 2 weeks and we are into week 5. Now have some names and addresses. write to them to find out if even know about the child and eliminate about half of the persons put forward because not interested (at least not at this stage, may come forward again when adoption is clear possibility). Do viability assessments and now at week 8 (and by god you are efficient if you have achieved this). Some pass so have to do a full Kinship/SGO assessment. The fostering team say that as you want a SGO assessment then they get 12 weeks to do it (fostering team have never caught on about power of court to order a shorter timescale) and we are at week 20 for a report – and we need a community assessment to see if the fostering team are right about any positive assessments …
    And this does not include good old Great Aunt Virginia who pops out of the woodwork at week 25 to say she is a approved foster carer who has just heard of proceedings and naturally wants to ensure child stays in birth family.
    does anyone really think that Court of Appeal is going to agree that no applications for extended family after week 4? it is not going to happen and 26 weeks is dead in the water once solicitors for parents game the system by a carefully phased drip feed of new family members who have to be assessed in the best interests of the child ….

    • I broadly agree – even without any gaming of the system, the fact is that until that expert report comes back and says “no”, there are always going to be some parents who don’t really communicate to their family how critical it is that someone comes forward to offer themselves as a carer – or that the family member doesn’t realise how serious this is. I always used to say to parents when I represented them – we hope this won’t end up in adoption but you need to understand that it is a possibility if things don’t go well, because Local Authorities don’t issue these cases for small problems.

      Even on a situation which is relatively straightforward (no fact-finding, no trying to locate dads, no DNA testing, no O/S, no need for drug testing before the psychiatric) I don’t think 26 weeks is do-able on the PLO style model. And we are yet to see Justice Ryder’s rethought route map, so I think the Courts are being unfair and sneaky to try to roll out a 26 week system before there’s a plan for how proceedings are supposed to be done in 26 weeks.

      • God forbid you might need a finding of fact hearing, how exactly is that supposed to fit into a 26 week timetable.

  2. Very thorough and thoughtful blog post. It’s all well and good telling everyone that Public Law cases need to be finished in 26 weeks, but with no thought to the processes that might make this even vaguely achieveable.

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