Relaunch the PLO – 26 weeks back again?

The President of the Family Division has published the latest View

The link doesn’t seem to work so it is

https://www.judiciary.uk/guidanceandresources/a-view-from-the-presidents-chambers-november-2022/

Basically as all of us working in Family Justice know, due to the immense pressures on the Court service anyway and exacerbated by the Covid pandemic – which took Tier one out of the picture for two years and caused a huge backlog, in many cases now where the evidence is all gathered and ready for final hearing it is taking four-six months to get a final hearing.

That knowledge had a knock-on effect – what was the value in professionals busting a gut to get all of the evidence ready by a week 20 IRH when there was NO possibility whatsoever of getting a final hearing in the 6 weeks after that to hit 26 weeks?

And so drift came back in to the system.

The President is now saying, this is the time to restart thinking about 26 weeks and trying to achieve it. I don’t know where they are magically going to summon up Judges to clear the backlog of cases (frankly, it probably requires a year of getting every single Recorder with a care ticket to sit more or less full time, to get rid of those and allow a clean start)

But the President does have some suggestions – really centred around the issue that if you take directions hearings out, or at least greatly reduce them, you’ll have more space in the diary for final hearings.

So, the big ideas are :-

1. Care proceedings should have 3 hearings only. The third one should be the final hearing. I.e, you have an ICO hearing/CMH, an IRH and a final hearing. If you reduce the number of hearings that have to be squeezed into a Court diary, then more of the space available in that diary can be used for final hearings, so you’ll wait less time for one.
2. Parents are to identify alternative family members for assessment by the time of the CMH (or within a week of it). At the moment, I think that the delay in care proceedings is generally at the IRH-waiting for final hearing stage, rather than the being ready for IRH stage, but it would obviously be better to identify family members and do that assessment as early as possible. I’ve been talking about the “Auntie Beryl” problem for years – that it is at the point where parents realise that adoption is being recommended that they really dig deep into family and find someone who would offer to be assessed, and is a Court ever going to turn down a realistic proposal that comes in late – especially with the Re B-S and Re B guidance about adoption being “nothing else will do”. I think this is a good proposal, but we’ve heard it all before, and are Judges genuinely going to be backed by the Court of Appeal if they refuse assessments of family members put forward at week 18? (and even if they do, is that actually a good thing?)
3. Cut down on experts – the statistics apparently are that expert instructions have gone up 33% since 2016. I wonder what proportion of that are having to do updating hair strand tests because the final hearing is months later than hoped for. It’s probably no bad thing to remind everyone of the strictures of Part 25 and it does seem over the last few years that we’ve drifted back to a feeling of experts being the norm rather than the exception.
4. Limiting the issues to be considered by the Court at final hearing – is threshold satisifed, where should the child live, what are the contact arrangements, what final orders should be made? That’s what the Children and Families Act 2014 said the Court HAD to consider at final hearing, but in practice it has been difficult. What is a Court to do where the plan is, for example for a parent and child to move from a parent and baby placement into the community but the housing is simply not available?
5. Robust case management and focus on compliance with orders, making every hearing count and so on.

Without the ability to pump more resources into the system – which isn’t within the President’s gift and if anything the direction of travel with public finances will be less resources rather than more, these are all sensible practical proposals to do more with what we have.

I suspect we’ll also see much stricter marshalling of Court resources when setting time estimates for final hearings – advocates may have to really be able to justify their time estimates for witnesses and I suspect there will be a downward pressure to make 5 day hearings fairly exceptional, and 3-4 days becoming the norm. That obviously makes it harder for the judiciary because reading time and thinking time to construct the judgment within working hours becomes harder to hang on to.

If I had a magic wand, these would be my two additions.

1. When the case is issued by the Local Authority, the Court find a 3 day final hearing slot between weeks 20 and 26 at the time of issue, or as close to it as can be managed. If those days end up not being needed, so be it, they can always be used for something else (the cases that go 4 or 5 days instead for example), but everyone starts the case KNOWING when the case should conclude. Probably at the moment, those final hearing dates are 9-10 months away, but as we work through the new batch of cases the time lag between IRH and final hearing comes down. Until we can have honest and robust conversations about the lag between IRH and final hearing, we can’t really address this central problem in cases. (I’ll make it plain – it isn’t the Court’s fault that it takes so long to get a final hearing, it is a symptom of overwork and under-resourcing)
2. I would honestly nuke the ADM as a gatekeeper for Local Authorities making Placement Order applications. If the Local Authority are wrong in seeking adoption as the plan, let that be thrashed out before the Court and the Court make the decision. What’s the benefit of building a 2-3 week hold-up in care proceedings to allow an internal Local Authority piece of gatekeeping when the Court is going to make the decision anyway? This is nothing against ADM’s who are good people and work hard but if the decision on ASKING for a Placement Order sat with the social work manager (or the next tier of management), would that genuinely make things any worse for the child? The unsatisfactory applications will be refused by the Court in any event.