Saturday, 21 August 2010

Children and the courts .... concern over delays in care proceedings

The Guardian has recently published interesting items about delays in cases involving the care of children ("care proceedings").  Many of these cases are far from straightforward.   Barnardos are suggesting a 30 week period in which care cases should be completed - see The Guardian 9th August - "Children left in danger by court delays".  At the end of 2009, there were 12,994 open care cases in the courts.  Cases are taking an average of 57 weeks to complete in the county courts or, in the magistrates' Family Proceedings Courts, an average of 45 weeks.  A second article is by Mr Leslie Baker JP who is a member of the family proceedings panel in Wiltshire - The Guardian 20th August - "Decisions on care proceedings are too sensitive to be given a fixed deadline".  He says that delays are due to the need to obtain the necessary information so that the court can make a proper decision.  "Care orders, allowing children to be removed from their parents, are life-changing instruments and courts must be satisfied that a case merits such draconian action".

The essential fact is that both Barnardos and Mr Baker are basically right:  delay is prejudicial to a child's welfare but always the full facts must be ascertained.  An artificial 30 week "cut off" therefore seems impracticable.  The real question then becomes - how can a better balance be achieved between delay and adequacy of information?

A further problem is that the Legal Services Commission (LSC) has succeeded (from October 2010) in taking away legal aid franchises from some 46% of the firms who practise in this vital area of law.  Whilst there are some legal challenges afoot to the tender process used by the LSC, the outcome may still be a very big cut in legal aid and it would be almost impossible, in this complex area of the law, for an unrepresented parent to cope against the local authority and perhaps the Children's Guardian as well.  Note: guardians are independent of the local authority and are usually assigned to particular cases by the Children and Family Court Advisory and Support Service (CAFCASS).  The Guardian's role is to safeguard the interests of the child.  The absence of legal representation is likely to make cases take even longer than at present.

The Lord Chief Justice has called for proceedings to be shorter - see Family Law 20th July.  He also questioned whether the present ADVERSARIAL system is the right approach.  Adversarial proceedings often polarise the parties who frequently adopt very entrenched positions and come to think of themselves as "winners" or "losers".  See also Law and Lawyers 10th July


  1. " come to think of themselves as "winners" or "losers". "

    If a parent loses his or her children unjustly, they have every right to think of themselves as losers.

    I am very gloomy about the notion that the adversarial system is in some way deficient, in this or that particular arena. It is too easy to imagine that there is a broad based programme of nibbling away at it, not by conspiracy, but individuals with a common cause I don't share.

  2. Ben - I agree with "If a parent loses his or her children unjustly, they have every right to think of themselves as losers." The key word in there is "unjustly".

    The adversarial system has its merits. For example, where disputed factual issues have to be decided and the parties are unable to agree then a fact-finding hearing conducted on adversarial lines may be the only way for the court to come to a decision as to the factual basis for the case.

    However, the fact is that the adversarial process does not especially encourage the examination of alternatives. It becomes a decision between the polarised positions of Party A and Party B whereas there are sometimes alternative solutions which might enable a case to be concluded. This is why there is a growing emphasis on the use of alternatives such as mediation. Of course, (sadly) the alternatives do not always work either but they are frequently worth trying.