Yet more pondering about the 26 week timetable unofficial roll-out a year in advance of the projected Children and Families Bill becoming law, and whether there is a hint in the Family Modernisation second update?
This continues to trouble me, and I know others. I warned way back in April 2012 that the new Court computer system seemed to have implemented by stealth a presumption that a care case would finish in 26 weeks, and that reasons for not doing so would have to be recorded, and that this was inevitably going to have an impact on the timetabling of cases
And here I blogged back in October about the issue being raised before MacFarlane LJ and Ryder J at the Nagalro conference, and whether or not it was said that there was no such policy of 26 weeks being the starting point and whether a Judge applying such a policy ought to be appealed. We have never got to the bottom of what was really said
I am aware that around the country, orders are being made, setting out whether a case should be concluded within 26 weeks or not [not “This case does not require a 40 week timetable and can be concluded by week 26”, but the reverse “This case has issues that require that the proceedings go beyond week 26”].
And they are made at a very early stage of the proceedings.
Without a doubt, the Court has the power to determine when a case should be concluded, and set a timetable for the expeditious resolution of the case, and the fixing of that timetable is within the judicial discretion. Robust case management is a vital judicial function, and avoidance of drift and unnecessary delay is a commendable goal.
And without a doubt, although the law currently (through the Public Law Outline) works to a timetable of 40 weeks, the Court has the power and discretion to set a timetable that is less than 40 weeks, or indeed more, in accordance with the child’s welfare.
What troubles me is the importation of a presumption that the starting point is 26 weeks when there is no law to that effect.
This is not a trivial matter. Decisions about whether pieces of evidence, including independent assessments, can be obtained, are made on the basis of whether they fit with the timetabling of the case, and there is a considerable difference between 26 weeks and 40 weeks (which is our current ‘starting point’, that can, as I have said, be deviated from)
The other pivotal consequence of this is that setting a 26 week timetable as a starting point (before any of the accompanying measures such as pre-proceedings work being improved and CAFCASS playing a larger role in the early stages of the proceedings have been formulated, never mind implemented) means that a parent simply has far less time to demonstrate change, or to accept the need for change.
Those 14 weeks, or 3 ½ months, are a period where the parent could attempt to evidence growth in insight and change, or evidence having tackled the problems. If we remove that, there are going to be cases when a parent who would have made use of it will not have that opportunity.
What worries me is NOT deciding the case quicker, it would clearly be better for children to have the decisions made for them promptly and that is in accordance with the often quoted but often ignored principle of no delay enshrined in the Act. No, it is my underlying fear that cases will end up with different outcomes when they are decided in 26 weeks than if they had run for 40 weeks.
This is the latest glimmer on it, from the Family Modernisation second update. Bear in mind that this is not a statutory instrument, nor a practice direction, nor guidance, nor anything that could be relied on by law, but it is in a sense a marker.
This is the passage I am interested in :-
One of the key clauses in this Bill is that care or supervision orders should be determined without delay and in any event within 26 weeks beginning with the day on which the application was issued.
Although this 26-week time-limit will not be a legal requirement until the Act is enacted (probably in April 2014) the President is keen to encourage those involved in the family justice system to continue to use the interim period before implementation to develop their practices to prepare for commencement. Cases should be managed by judges to reach a just conclusion without unnecessary delay.
Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case
I would have preferred this to be far less ambiguous. The first two paragraphs I agree with entirely. The third I find to be unclear – it doesn’t condemn the practice of setting 26 week timetables a year in advance of this becoming law. It doesn’t say, what one would have hoped, that there is no starting point of 26 weeks, and that whilst it might be appropriate in some cases, the timetabling exercise should not be carried out with that “starting point” in mind.
It is nowhere near as strong as the remarks which were reported to have been made by the senior judiciary at the Nagalro conference (though as we know, we shall never really get to the bottom of what precisely was said)
It is perhaps interesting, and illustrative of the fact that the 26 week target has indeed been secretly rolled out that the wording is not
Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in 40 weeks or less dependent on the facts of the case
but the reverse, that it may be 26 weeks or more. Is this a tacit endorsement of Courts having in their mind 26 weeks as the goal to aspire to?
Given that we know that the Court computer system is recording the cases that finish beyond 26 weeks and reasons for this, are there performance indicator statistics being gathered from that computer system that shows how many cases ARE going beyond 26 weeks, and have targets been set for what those numbers or proportions should be? Or am I Marvin the Paranoid Android?
We remain in limbo until someone whose client is materially disadvantaged by the mental “starting point” of 26 weeks takes the case management decision to appeal. We also have, at this stage, no real sense of which way the Court of Appeal will go on that.
They could take the strict law approach of 26 weeks being a creature of the imagination and 40 weeks being the starting point set down in actual law, or they could go the judicial discretion, case management powers and avoiding delay approach.
So, place your bets – will the first appeal be from the North, South, East or West of England, and will the Court of Appeal back the Judge or back the PLO? The Court of Appeal haven’t shown much love for the PLO to date, but generally in slapping Judges who tried to case manage in accordance with its principles where the Court of Appeal felt that led to unfairness. So on the body of their decisions, my gut is that they should be slapping this 26 week starting point. But I would not put money on it going that way.
[I’ll emphasise again for clarity, I see nothing wrong with a Court looking at the individual case and determining that this case should, on the issues and facts, be resolved in 26 weeks, or 19 weeks, or 52 weeks that seems to me to be a perfectly proper judicial decision.
My issue is with an unwritten principle that ‘all things being equal, a care case should finish within 26 weeks, and there would need to be reasons to go beyond that’ when that is not currently the law. Or even that this is a perception which is being allowed to persist, there not being a clear statement to the contrary. ]
I have been following your blog for a while and I have been impressed by your `right mindedness` and your willingness to open up to those of us, like myself, who do not have a clue about the law. As far as I am concerned the law is just a `set of rules`. Please correct me if I am wrong.
What you have said is that these rules have now been undermined by procedures and computers. Quite right that you should be concerned.
Politicians have said that more children should be put into care. How are they going to achieve that in a state of adversity? Well they cannot do that with the same level of staff and resources. There is only one option available to them and that is to speed up the process.
Hence the 26 weeks.
Hi Alice, thank you. The law is really a combination of two things- the Acts of Parliament (like the Theft Act, the Children Act) that are debated by Parliament and that a Government bring into being and is voted on and ultimately approved by Parliament. And then case law, which is the Court applying those Acts in certain cases to establish principles (it would be impossible for Parliament to envisage every single thing that could happen, so the courts often have to decide how exactly a case should be determined fairly for some circumstances that weren’t envisaged, or to decide exactly what words in the Act should mean). And if the Courts get those decisions wrong they can be appealed or overturned.
Either way, there is a process which is open and fair – we may not like the outcome, but the process itself is open to challenge (either by the vote in a General Election or by an appeal)
What is happening here is that by the back door, a fundamental change to how long parents get to demonstrate that they can safely care for their children or make the changes to do that is being changed, without Parliament even having considered yet whether 26 weeks is a good thing. And that makes me very nervous.
The law can often be silly, but it is followed until it is changed by either the Court or Parliament, not by people setting secret targets and aims.