Recommendations to achieve best practice in the child protection and family justice systems

Interim report of the Public law working group (June 2019)

Resolution’s response

Resolution’s 6,500 members are family lawyers, mediators and other family justice professionals, committed to a non-adversarial approach to family law and the resolution of family disputes.

Resolution members abide by a Code of Practice which emphasises a constructive and collaborative approach to family problems and encourages solutions that take into account the needs of the whole family, particularly the best interests of any children.

We also campaign for better laws and better support and facilities for families and children undergoing family change.

This response has been prepared by members of Resolution’s Children and Legal Aid Committees made up of local authority lawyers, lawyers acting for parents and those acting for children on a day to day basis.

Responses to draft recommendations

Introduction

These and the other recommendations in the interim report largely seem to be a restatement of good practice with which we can generally agree.  It is helpful for that to be collated and consolidated.  Any objections mainly arise where our members consider unnecessary additional work or documents are created, (especially in the context of the general recognition of the need to better promote the wellbeing of all those working in the family justice system).

The messaging around publication of the final report might want to emphasise that the report collates, reiterates and builds on existing good practice and encourages this to be extended across all local authority areas, to avoid any ‘tone of blame’.

  • Resolution would strongly support the Public law working group in any calls for the need for further resources across the child protection and family justice systems, to support any additional work created by any new protocols, and to support local family justice boards to successfully implement those final recommendations of the Public law working group (and the Private law working group) which are to be taken forward.

Local authority decision making

Recommendation 1: Sharing good practice. A good practice guide, developed by all stakeholders, should be drawn, setting out shared expectations and understanding of legal decision-making routes. This would aid coherence and assist in ensuring focus is maintained within the decision-making pathway both for initiating pre-proceedings protocol and commencing proceedings. Formalising the expectations of how decision-making pathways operate would assist local authority staff.

Response:   We don’t think this recommendation is necessary.  For the sake of clarity, a national guide setting out the basic expectations for each local authority which could be added to their own good practice materials would certainly do no harm, but we don’t consider it is necessary given that we already have the PLO.  The guide would presumably be prepared by volunteer local family justice board members who are likely to already be hard pressed.

Recommendation 2: A shift in culture to one of co-operation and respect that values and equally questions the contribution of all parties. Bringing positive change across the shared cultures of social work, managers, lawyers and the judiciary will require a shift away from the current, often-adversarial milieu and towards a cooperative environment. Ensuring change is passed throughout organisations as well as strong and positive messages from the “leaders” in each area is vital.

Response:  We believe that this will be difficult to achieve in what is essentially an adversarial system about safeguarding intervention.  In our members’ experience those working in each area are respectful of the roles and contribution of others, and there is as much co-operation as possible within the operation of the PLO, as well as a lot of good work going on between professionals and the courts.  Ultimately the issue of proceedings shifts the nature of the case, and where there is not agreement about an issue, co-operation is not possible.       The recommendation may need some reconsideration or rewording to make it more meaningful and realistic.

Recommendation 3: A renewed focus on pre-proceedings work and managing risk. A re-focus and acceptance of the imperative to complete all work prior to going to court and to manage risk outside of the court process has the potential to avoid the need to issue – but, if issuing is the only safe option, the court process will benefit from careful and focussed pre-proceedings work having been undertaken.

Response:  We agree with this recommendation.  Whether the risk can be managed outside of the court process and the need to issue, urgently if necessary, should of course be decided on a case by case basis.      

Any focus on pre-proceedings work should be accompanied by better remuneration for that work for lawyers.

Recommendation 4: Develop consideration factors to support decision-making prior to legal gateway meetings. Clarity and confidence in relation to the considerations and factors in order to support families effectively pre-proceedings would ensure consistency across decision-making and potentially create greater confidence in the efficacy of these processes, thus mitigating risk-averse practice across all sectors. We recognise that setting fixed trigger points may increase the number of legal meetings and could increase proceedings if practice continues unchecked. Hence our emphasis on support for families and social work reflection and informed deliberation.

The key is to maintain purposeful movement and to prevent drift as well as aiding common understanding of the sequencing within decision-making pathways. An emphasis on the voice of the child and the parent would aid consistency and support measured decision making throughout the process.

Guidance for timing would provide enhanced understanding and agreement for all as to when cases need to be escalated to legal meetings.

Within any guidance, defining senior management roles based on the responsibilities of the role would drive the siting of decisions at appropriate levels. The need for those making the key decisions to bring experience and gravitas should be agreed.

Response:  We agree with this recommendation.  It reflects best practice and is already implemented in certain areas.    

Recommendation 5: Re-focussing the role of the local authority legal advisers and the use of the legal gateway meeting. The role of legal advisers should be defined with an emphasis on the need to work towards staying out of court. The legal adviser should not purely be there to identify threshold but should assist in identifying the key issues and then what work is required. The role of legal advisers should shift from an emphasis on whether threshold is met to a wider question: if threshold is met, how do we then support the family to come back from that position? The legal gateway meeting should be used to address the following key questions:

  1. what support is needed?
  2. who are the “safe” people?
  • where might alternative and supportive carers from within the family come from?
  1. what will the impact on the child be not just now but in the future? All options should be aired and at each stage all alternatives must be exhausted before the next steps towards court are taken. This type of balancing should be akin to that undertaken within a Re B-S

Response:  Legal planning meetings should be used to address those key questions set out in the recommendation, with legal advisers playing a proactive role in wider questions than whether threshold is met. This reflects good practice and helpfully reiterates what happens at legal planning meetings, certainly in some local authorities.

However, given the current statutory framework and statutory safeguarding duties of local authorities, Resolution disagrees that the role of the legal adviser should be defined ‘with an emphasis on the need to work towards staying out of court’ and asks that the first sentence under this recommendation is removed.

Anecdotally, our members report that in some cases the local authority should have issued sooner.  There is clearly a balance to be struck in trying to make progress under the PLO and needing to issue, and also a need to understand why the local authority did not issue sooner for justified reasons, for example, where the mother going into rehab can take six months under the PLO.

Recommendation 6: Develop and share good practice in driving positive challenge with the IRO / conference chair. Ensuring the role of the IRO / conference chair is constructive and avoids a “checklist” approach will assist in consistent and effective decision-making. The current role on occasion seems to increase the grit within the system at the expense of informed, proactive and timely planning. Learning from best practice and an emphasis on the importance of strengthening the quality of IRO / conference chair services will underpin this recommendation. Using the existing guidance and handbooks could be an effective tool in re-emphasising their role in the prevention of drift for children.

Response: These services provide an important role in safeguarding which should not be diluted. Resolution suggests this recommendation may need some clarification.

Comments on best practice guidance, set out in appendix C

This seems straightforward and we have no comments.

Pre proceedings and the PLO

Recommendation 7: A renewed focus on the central principles in the pre-proceedings phase of the PLO. Local FJBs have an important role to play in developing expectations of practice and protocols in regard to the pre-proceedings phase of the PLO. Where there is a real risk that care proceedings may become necessary, professionals should be guided by the following principles in the pre-proceedings phase of the PLO:

  1. the overriding consideration is the welfare of the child;
  2. working in partnership with families with the aim to bring about improvement and change and to avoid the need for care proceedings is key;
  • understanding the needs and strengths of children, their parents and their wider families is essential;
  1. this is an assessment and support phase that provides a final opportunity to divert cases from proceedings unless necessary;
  2. proceedings are an option of last resort if no other intervention protects the outcomes for children;
  3. each decision-making stage of this phase should be subject to regular review and oversight by a senior manager;
  • unnecessary delay is to be avoided, and the timeliness of the implementation of any plan of support (or plan for care and support) or assessment of a family needs to be monitored;
  • work should be conducted to the same standards of fairness, transparency, and respect as if it were being conducted subject to the scrutiny of the court process;
  1. access to professional support, including expert legal advice, is essential for professionals and families alike.

Response:  We agree with these principles which should already be being followed.  However, overly increasing the work and responsibilities of local family justice boards which continue to rely on the generosity of practitioners to volunteer is not necessarily helpful or likely to easily provide a solution.   A national template for local FJBs may be helpful.

Recommendation 8: Drafting of local authority pledges or charters to families. Local authorities which have not already done so should, either individually or via their local FJB, develop a pledge or charter setting out how they intend to work with families. It should be published and accessible. Local authorities are invited to consider adopting the FRG’s charter, appendix J7, which aims to promote effective, mutually respectful, partnership working between practitioners and families when children are subject to statutory intervention.

Skilled and dedicated social work can be an agent for change. Local authorities should consider the extent to which their current working practices and structures prioritise the need for social workers to develop strong relationships with the families they work with.

Response:  We agree with this recommendation to aid consistency across local authorities.  It is helpful for authorities to have something to work from and compare existing pledges or charters.

Recommendation 9: Working with children, including using the FJYPB’s Top Tips. Local FJBs and local authorities should consider promoting the use of the FJYPB’s materials, appendices J1 – J5, to all professionals working with young people, including those relating to the consideration of the relationships with brothers and sisters.

It would be helpful for the FJYPB to develop top tips specifically for professionals working with young people outside of proceedings in this phase of the PLO.

Response:  We agree with this recommendation.  Our members’ experience is that these top tips materials are helpful to use as part of training materials.

Recommendation 10: Simplifying letters to parents. The current template for letters before proceedings contained in the statutory guidance can produce letters which are often overwhelming, difficult for parents to follow and unhelpful in maintaining constructive relationships. Letters to parents need to be less legalistic. It should always be clear what the concerns of the local authority are, what children and families can expect of children’s services, what is expected of the family and why – but this should be written in a way that encourages participation moving forward.

Local authorities should adopt the general principles relating to correspondence appended to the guide recommended by this report, appendix D3.

Local FJBs should work with local authorities, practitioners and other stakeholders, including parents with experience of care proceedings, to develop models of good correspondence.

Response:  Resolution supports this recommendation.

The clarity and length of letters to parents can vary between local authorities.   Resolution agrees that they generally do need to be simpler and use simpler, careful language to explain the reasons for the steps the local authority is taking.  A letter needs to make clear what the local authority’s concerns are, where they want to work with and support the parent/s, what the local authority will do and what they want the parent/s to do, and whether it is the intention to issue court proceedings and on what timeframe.   All the timescales should be clear including the time for change to happen, and who will undertake assessments and when and how long this is expected to take.

The letters of instruction for assessments need to be ready at the same time if at all possible.  Otherwise, it can build in delay down the line where a parent later objects to an expert.

Recommendation 11: Using the pre-proceedings phase of the PLO early (where required) and effectively. Where it is clear that families are at real risk of care proceedings to address an identified risk or actual significant harm experienced by the child, local authorities should trigger the PLO early enough to give families the opportunity to address the harm identified and utilise access to legal advice. A review of the current statutory guidance to make this trigger point clearer would be welcome.

Families and practitioners should be encouraged to understand that the pre-proceedings phase of the PLO has a dual purpose: to divert families away from proceedings and to identify where proceedings are required for the welfare of the child, and to do so in such a way that the case can be presented in good order, and meet the requirements of justice on day 1.

Response:  Resolution agrees with this recommendation.

Using the PLO effectively also means not using it where there is little point in having a PLO meeting i.e. when the local authority is just ticking a box and having a meeting when it has every intention of issuing.   The focus should be on those cases where the pre-proceedings phase, letter and PLO meeting will be useful.        

Recommendation 12: A standard agenda for meetings before action. Meetings before action (i.e. before issuing proceedings) should have a standard agenda which ensures that core elements are not overlooked. This will be developed in the final report.

Response:  We agree with this recommendation; the format of meetings can vary depending who chairs such. Families should receive a pre-proceedings letter with this agenda attached if possible.

Recommendation 13: Re-focussing the role of local authority legal advisers. In advising their clients, local authority legal departments should be familiar with expectations of good practice contained in the report as well as statutory guidance regarding the pre-proceedings element of the public law outline.

Local authority legal departments should develop expectations regarding timescales and tracking of cases outside of proceedings.

Legal advice should focus on more than whether the threshold criteria in relation to significant harm is met. It should also consider whether proceedings are necessary and what plans of assessment and support might be appropriate to divert cases from proceedings.

Response:  Please see our views expressed in response to recommendation 5.  It is right that legal advice should not be limited to only whether threshold is met – this reflects existing good practice which should be the practice in all local authority legal departments, if that is already the case.  But we would have concerns about over emphasis on keeping cases out of court and any ‘pressure’ on local authority legal departments to avoid issuing where that is necessary at any given time.

Recommendation 14: Better use of assessments, services and support and fuller record keeping. It is important that families have clarity about the assessments they are being asked to undertake and that there are clear records of what is proposed, what has happened and what will happen next. It is also important that timescales are identified for each element. Local authorities should adopt the template assessment record and agreement, appendix D4.

All assessments should be recorded in formal reports which can be shared with those subject to the assessment, understanding that they may be required for subsequent proceedings. The assessment report should be to a standard that it will be reliable in court proceedings.

Evidence gathered through the PLO process is likely to be relevant to any proceedings if issued, particularly when in dispute, and so comprehensive and accurate record keeping is essential.

In working with families, social workers sometimes need access to a range of expertise and services beyond their own social work expertise, either by way of access to an embedded in house multi-disciplinary team, or by way of being able spot purchase services from independent experts with recognised expertise. The commissioning of expert assessment or services should not be restricted to court proceedings.

Assessments should be conducted to the same standard as if they were conducted within court proceedings, with letters of instruction and a clear record of the information shared and analysis arising. This will have the advantage of avoiding duplication of work if proceedings are issued.

The focus of this phase should not purely be on assessment, but rather support and assessment. Local authorities should work proactively with families and other services to try and address the deficits in parenting identified. In Wales, for example, close regard should be had to the Code of Practice to the Social-Services and Well-being (Wales) Act 2014.

Responsibility for the provision of services required to support children and their families does not rest solely with children’s services. A multi-agency, problem-solving approach of the sort seen in the Family Drug and Alcohol Court is the key to successful and better outcomes for the children, and this should become the standard rather than the exception. Children’s services should, where required, routinely work in conjunction with adult services, housing, health and education authorities, which may sometimes require the intervention, and leverage of senior management involvement.

Local authorities should work with those commissioning services from a range of external agencies to address identified needs of parents and children in their area.

Response: We agree with this recommendation.  Parents need to have clarity about assessments and timescales, as if in proceedings.

Recommendation 15: Tracking progress of cases pre-proceedings. Unnecessary delay in the receipt of services and decision-making is bad for children and their families. The pre-proceedings stage should be conducted in a timely way, and usually last no longer than six months, unless the facts of the case genuinely demand a longer period.

Local authorities should ensure that they are monitoring and reviewing cases, including by way of a tracker tool that should be developed for use in the pre-proceedings phase of the PLO.

Local authority legal departments currently routinely monitor progress of a case in proceedings against the requirements of the PLO, including a requirement that cases should conclude within 26 weeks. Legal departments should also ensure that the progress of cases in the pre-proceedings phase of the PLO is subject to ongoing monitoring and review, and that there are clear expectations of the timeliness of the response of the legal department where cases are outside of proceedings. Local authorities should consider adopting the milestones set out in the good practice guide accompanying this report.

Response:  Resolution agrees this is a sensible recommendation and the good practice guide is welcome.  There may need to be consideration of the overall time frame where the pre-proceedings stage is started again, although we understand this is not common.

Recommendation 16: Working with family and friends and the use of the FRG’s Initial Family and Friends Care Assessment: A good practice guide (2017). Families should ordinarily be offered a FGC or equivalent prior to their child being taken into care, except in an emergency.

Family and friends should be considered as potential sources of support for the parents as well as potential alternative carers for the child.

The identification of family and friends for support and assessment is a key social work task, which should be considered throughout the pre-proceedings stage of the PLO or earlier.

Local authorities are invited to adopt the FRG’s Initial Family and Friends Care Assessment: A good practice guide (2017).

Response:  Resolution supports this recommendation, although it can be challenging to assess family and friends pre proceedings without the parents’ co-operation and consent.

Recommendation 17: Greater pre-birth preparation for newborn babies. Local authorities need to develop a plan of assessment and support as early as possible in the pregnancy to provide for sufficient time in advance of the birth to have developed a plan for the approach needed when the baby is born.

The parents should be made aware of the proposals for intervention and support at the birth at the earliest opportunity, with an opportunity to comment and seek legal advice.

If the local authority comes to an early view that proceedings will be issued on birth, then draft documents should be made ready as far as is possible for issuing on the child’s birth. Cafcass should be informed of pending proceedings and the expected due date.

There should be an identified plan for the care of the baby upon birth which is shared with other agencies as necessary.

Use of s 20 / s 76 will only exceptionally be an appropriate vehicle for the separation of a baby from her parents and may only be done in accordance with the guidance given in other parts of this report. It should be the subject of bespoke legal advice by the local authority legal department. Access to legal advice for the parents will be critical.

Response: Resolution agrees that there is a need for a better approach to pre-birth assessments to identify risk and also for birth plans.  In our members’ experience, there is a complete lack of pre-birth assessments and pre-proceedings work with pregnant mothers and for the unborn child in some areas.

Recommendation 18: Effecting a change in culture, with training in support. Adopting the measures referred to in this report and accompanying good practice guide will require varying degrees of changes in culture and practice. It is important for different elements of the family justice system to have a better understanding of the importance of this work and what good practice looks like. The development of a clear strategy for the publication, communication and promotion of the expected standards will be key.

This should be complemented by training and education for every level, including every tier of the judiciary, senior management at each local authority, managers and front-line social workers and Cafcass.

Local authorities should have a clear published protocol or guide, which provides in a single document expectations and standards for the work conducted under the pre-proceedings stage of the PLO. Several local authorities, often in conjunction with local FJBs, have already developed a single comprehensive protocol, but this is still not standard. This report provides best practice guidance which has incorporated the principles of good practice identified.

Local authorities, in conjunction with key stakeholders either individually or via their local FJBs should agree a publicly accessible single protocol document setting out the ways in which they will work with families so as to achieve good practice in this stage of the PLO, either by adopting this guide, or adapting it against the principles recommended. Such a protocol will ensure a more consistent approach and clarity of expectations to the quality of the work conducted at this stage.

Response: Resolution supports this recommendation.

Comments on the best practice guidance, set out in appendix D1

This seems sensible.  Stage 3 of D1 should perhaps address payment of an intermediary and intermediary assessments.

The application

Recommendation 19: Revision of the Form C110A. To be achieved through the current pilot, to include the views of the working group as part of the feedback for further revision.

Response: Resolution agrees with this recommendation and the running of the pilot.   In principle we are content with a reduced, revised form provided the section setting out threshold is clear.

Recommendation 20: Greater emphasis on pleading “the grounds for the application” in the Form C110A. The application to specify the need for this to be completed by way of findings in concise paragraph form, setting out the case against the respondents at the start of proceedings. This can be incorporated in the revisions to the C110A. Pending the national rollout of the online application, we propose it is included as part of the good practice guidance which accompanies this report.

Response: Resolution agrees with this recommendation.

Recommendation 21: Revision of the Form C110A for urgent cases/ use of an “information form” for urgent cases pending roll out of the online form. The application requires revision to include the necessary information to inform listing arrangements wherever an application requests an urgent hearing. Pending the roll-out of the pilot nationally, the use of an “information form” template, appendix E2, is proposed as part of the good practice guidance accompanying this report.

Response: Resolution agrees with this recommendation.

Recommendation 22: Early notification of Cafcass. A protocol issued by Cafcass and the ADCS (or the local FJB) providing for advance notification of all care/EPO applications, so Cafcass can make advance/preliminary arrangements for representation of the child. Until a protocol is agreed, this requirement is included as part of our good practice guidance.

Response: Resolution believes such a protocol could be useful, assuming Cafcass can put in place the necessary arrangements within the current framework and resources.

Recommendation 23: Good practice guidance for courts listing urgent applications and CMHs. Good practice guidance that

(1) urgent applications are not listed before the date/time requested by the local authority to give the best opportunity for representation of the other parties and

(2) CMHs are listed appropriately (and not necessarily on the earliest available date) within the CMH window to allow effective case management.

Response: Resolution agrees with this recommendation.

Recommendation 24: Working with health services in relation to newborn babies. Sharing of existing protocols/local agreements with health services to promote similar arrangements on a national basis.

Response: We are unclear to what exactly this relates. We suggest that it would be helpful to clarify on the face of the recommendation the purpose and headline content of the protocols and local agreements.

Recommendation 25: Including the child’s birth certificate in the bundle. The child’s birth certificate to be a core document in care proceedings and included as part of the bundle for the first CMH. This is proposed as part of our good practice guidance.

Response: Resolution agrees that this is a good idea.  It would provide exact information on who has parental responsibility for the child at birth, and ensure that the child’s name is spelt correctly from the outset.

if the child is a newborn the child may not have been registered by the time of the first hearing so the birth certificate needs to be added to the bundle when it is done.

We would like local authorities to make applications for passports as soon as possible in the care proceedings. Our members report many occasions when the foster family want to go away but the foster child has no passport and the holiday is either not possible or the child has to go into respite care, or there is much anxiety about whether the passport will come through in time.

Recommendation 26: Focussed social work evidence / the SWET for urgent applications. A separate additional short SWET which may be completed in support of an urgent application, addressing the reasons for the urgency and the legal test for removal (in advance of the full SWET, to then be completed for the CMH), together with a short form template interim care plan.

Response: Resolution agrees with this recommendation.

The evidence should set out the harm alleged and why the child is considered at risk.  The order being sought and why should be made clear for the parents.

Recommendation 27: Revision of the SWET generally. General revision of the SWET template to avoid repetition of other documents and in accordance with our SWET proposals above.

Response: Resolution agrees with this recommendation.  We think the initial social worker statement guidelines are helpful.

Recommendation 28: A revised template for standard directions on issue. A revised template order will be introduced by the HMCTS Family Public Law and Adoption Reform Project.

Response: This will be welcome.

Recommendation 29: Introduction of checklists for advocates’ meetings and CMHs for practitioners and the court. Advocates’ meeting/CMH checklists for use by practitioners/courts with good practice guidance for a minute of the advocates’ meeting to be provided to the court, appendix E3 – E5.

Response: Resolution disagrees with this recommendation.

Advocates and practitioners should of course know what needs to be covered and think through the issues in advance.  But there are concerns that the introduction of these documents would create a barrier to more effective meetings.

The view of our Children Committee members is that the provision of a minute of the advocates’ meeting to the court after each advocates’ meeting will simply unnecessarily add to practitioner workloads and costs; there will be insufficient time to prepare a minute and it will simply become a ‘non -compliance stick’.

More importantly, the discussions at advocates’ meetings should be free flowing with the opportunity to openly discuss the issues as envisaged by the PLO.  We think checklists and a minute would potentially work against that and useful, frank discussions.

Recommendation 30: Circulation of case summary templates. A national rollout of the template case summary documents, appendix I, with their adoption included as part of our good practice guidance.

Response: Resolution is neutral about this recommendation.

Some of our members consider the templates in Appendix I overly restrictive.  They have queried why these are needed in addition to position statements and the CG’s report and what they helpfully add, especially if they don’t allow for additional issues.  They will also add to hard pressed practitioner workloads.

Local authority practitioners may have less objection to them being available for local authority use if the authority would find such helpful and they are limited to a maximum of four pages.

Recommendation 31: Early and active case management. Recommended good practice for early case management directions to be considered at all urgent hearings (assisted by a checklist of the most likely areas for early case management directions), appendix E6. Similar checklists – if considered of use more generally (and particularly for less experienced judges) – can be provided for CMH/IRH.

Response: Resolution is neutral about this recommendation, the issue is primarily for the judiciary, although we are conscious of the need to avoid further checklists inadvertently adding to judicial workloads.

Recommendation 32: DFJ focus on wellbeing. Each DFJ should formulate a local wellbeing protocol in consultation with local court users. The impact of current working practices and pressures and of any changes on all those working in the family justice system should be considered as an integral part of our recommendations.

Response: Resolution welcomes this recommendation.  It is will be important for local practitioners to be consulted on and understand what it will mean and feel in practice to have a meaningful impact.

Comments on the best practice guidance, set out in appendix E1 – E6

E1, 3, 4 and 5 – We don’t support the filing of minutes of advocates’ meetings for the reasons already discussed.

E2 looks helpful but will be additional work for local authorities.

E6 might be helpful for less experienced practitioners, but surely all those working in this area should be aware of these issues so we query if it is strictly necessary.

For the reasons started above we consider that I3 is unnecessary and restrictive.

Case management

Recommendation 33: Use of short-form orders. We recommend that after the CMO has been drawn and approved for the first hearing, thereafter a short form of order is used which in the main body of the order consists of:

  1. the name of the judge, time and place of the hearing;
  2. who appeared for each party or they were a litigant appearing in person;
  • if required, a penal notice (which must appear on the first page of the order);
  1. the basis of the court’s jurisdiction;
  2. the recitals relevant to the hearing; and,
  3. the directions and orders at the hearing;

All other matters (e.g. names of solicitors, parties’ positions etc.) should appear as an annexe or schedule to the order. These changes are especially important to enable LiPs to understand the orders made against and/or requiring action by them.

Further, whilst the direction for the instruction of an expert and the date for filing the report should appear in the order, the remainder of the directions for an expert (e.g. letters of instruction and division of cost etc.) should appear in the annexe/schedule.

The timeline for the case and compliance with the same should be contained within the annexe/schedule.

The short-form orders, if not drafted before or after the hearing, should be drafted within 24 hours of the hearing with heads of agreement being noted at court. The appendix should be updated, where possible, by parties prior to the court hearing, with each party sending in a short note of their client’s position for inclusion on that appendix before leaving court.

The new short form orders and appendices are to be strictly applied in all court centres.

Response: Resolution agrees with this recommendation.

Recommendation 34: Advocates’ meetings: using an agenda and providing a summary. Advocates’ meeting should take place no less than two working days before a listed hearing. Advocates should agree at the meetings the core reading list, the schedule of issues and list of agreed matters. One sheet of A4 containing those matters, should be produced following each advocates meeting for the judge, and to be provided to the judge by 4pm the working day before the hearing.

The timetable for filing and serving should take account of the date fixed/proposed for the advocates’ meeting.

Response: Resolution disagrees with this recommendation and queries whether it will be effective and helpful.

Our Children Committee members consider that the preparation of an agenda in advance is disproportionate and unnecessary.  This will simply add to the costs of the case.  Agreeing an agenda in advance would mean it taking longer for advocates’ meetings to be set up.  There is also a risk that lack of preparation of an agenda would result in objections to an advocates’ meeting proceeding and not being held at all.

In practice there will be a very short window for preparation of a summary sheet post an advocates’ meeting for the judge who will be receiving a case summary and position statements in any event.  The case summary can include relevant details of the advocates’ meeting.

Recommendation 35: Use of new template position statements and case summaries. Position statements need only be short documents, providing the judge with key issues, responses to the same and draft proposed directions/orders where they are sought. The case summary, respondent’s position statements and the CG’s position statement should be in the form of the templates set out in appendix I. Where an advocates’ meeting has taken place before a hearing and the parties are agreed on the way forward and the orders the court will be invited to make, a composite document setting out the core reading for the judge, the draft orders proposed, and a summary of the parties’ positions and issues shall be provided to the court by the local authority by no later than 4pm the working day before the hearing.

Local authority case summaries should not repeat all background information, in particular where earlier summaries are included in the core bundle and highlighted in the reading list. A short updating position statement with issues clearly identified should be lodged by no later than 4pm on the working day before the hearing.

Cases should not be adjourned for want of position statements: it is rarely, if ever, in the child’s welfare best interests.

Response: It is clearly important for the judge to have the parties’ positions and confirmation of whether a party consents to an assessment or otherwise, but our members don’t consider that the template position statements allow for what they would normally expect to be articulated in such.  There are concerns that a template would not allow for flexibility and the varied nature of the issues from case to case.  It does not allow for some inclusion of analysis.

It is not the experience of our members that cases are adjourned for want of position statements.

Recommendation 36: Renewed emphasis on judicial continuity. It is vital for the effective case management of a matter that there is judicial continuity. The full-time judiciary and HMCTS should give a high priority to ensuring that a case is dealt with by one identified judge and, at most, two identified judges.

Response: Whilst Resolution strongly agrees with this recommendation, there is clearly a resources issue to be addressed.

Recommendation 37: Renewed emphasis on effective IRHs. The final hearing should not be listed before an effective IRH has taken place unless there are, unusually, cogent reasons in a particular case for departing from this practice.

An IRH needs to be allocated sufficient time. The timetabling for evidence in advance needs to provide for an advocates’ meeting at least two days in advance, and the advocates need to be properly briefed with full instructions for that meeting.

For an IRH to be effective, the following is required:

  1. final evidence from the local authority, respondents and CG (exceptionally, an IRH may be held with a position statement setting out the CG’s recommendation before the final analysis is completed);
  2. the parents/other respondent(s) attend the hearing;
  • the position in relation to threshold/welfare findings is crystallised so the court is aware of the extent to which findings are in issue and determines which outstanding findings/issues are to be determined;
  1. the court determines any application for an expert to give oral evidence at the final hearing;
  2. the court determines and the CMO records which witnesses are to give evidence at the final hearing (all current witness availability should be known);
  3. the court determines the time estimate;
  • a final hearing date is set;
  • where there is a delay before the final hearing date, directions are given for updating evidence and a further IRH before the final hearing.

Response: There is no objection to a renewed emphasis on effective IRHs, but an over prescriptive approach to listing may be unhelpful.  Our members currently see varying approaches to the listing of final hearings and there are varying views about what the approach should be.  There is some concern that not listing a final hearing before an effective IRH has taken place could be very problematic where a final hearing of more than 5 or 6 days is required.  Equally members experience delays in listing where the court diary is clogged with final hearings that will never be effective.  We suggest a final hearing should be listed if there are cogent reasons to do so.

Some of our members have suggested that the IRH should come after the local authority’s final evidence and preferably after the parents’ evidence but if that will cause delay, the parents (and CG) should file a position statement. The IRH should be listed with enough time to consider the issues, perhaps at 2pm, with parties arriving at 10am and with a view to resolving threshold if possible and identifying a list of final hearing issues.

Para 264i and the words in brackets – We consider that usually requiring the CG’s final analysis, which requires the CG to have the parents’ case/s, may build in delay.  The CG’s position statement may be sufficient and a final report would not be needed if the case finishes at IRH.

It might be more emphasised that expert evidence needs to be available for an IRH to be effective.

Recommendation 38: The misuse of care orders. A care order should not be made solely or principally as a vehicle for the provision of support and/or services. In Wales, the current statutory guidance is set out in para 116 of the Code of Practice to the Social-Services and Well-being (Wales) Act 2014. In an appropriate case, consideration should be given to the making of a supervision order which may be an appropriate order to support reunification of the family.

Response: It is of course the case that care orders should not be misused.  We are aware that some local authorities make the decision that they cannot manage care orders ‘at home’ and do not seek or agree to such, but a child will not necessarily be removed from parental care in every case.  We suggest it would be helpful for this recommendation to perhaps be expanded and clarified as to the mischief it is seeking to address.

Recommendation 39: Case management of cases in relation to newborn babies and infants. Applications in respect of newborn babies and infants should be the subject of strict case management directions and time limits. It is especially important that proceedings in respect of these children are concluded, whenever possible, within the 26-week limit. There will however be some cases, particularly relating to first time parents, where parents are demonstrating their ability to respond in a sustainable manner to the advice and treatment provided to address concerns about their parenting, and where therefore proceedings may need to be extended.

Response: Resolution agrees with this recommendation.

Recommendation 40: Experts: a reduction in their use and a renewed emphasis on “necessity”. The number of permissions to instruct an expert (especially an ISW and/or psychologist) are high and should be reduced when seeking an expert is not necessary to the case. The instruction of an expert is not a neutral exercise: it incurs expense and potentially causes delay.

The judiciary and members of the legal and social work professions need to be reminded of the provisions of Part 25 FPR and the requirement that permission to seek an expert opinion should only be made and granted where it is necessary. The fact all parties consent to the instruction of an expert does not alleviate the duty of the court to be satisfied that it is necessary.

Response: Resolution agrees with this recommendation.  In our members’ experience the approach to permissions very much depends on the judge involved.

Recommendation 41: Experts: a shift in culture and a renewed focus on social workers and CGs. There should be shift in culture and practice away from early instruction within proceedings of experts. Social workers and CGs are expected to have the expertise to make professional judgments and assessments generally but particularly, in relation to the assessment of sibling and parental relationships/bonds and commenting upon attachments.

Response: Resolution understands this recommendation, subject to balancing this with avoiding the unnecessarily late instruction of any necessary expert.

Children’s services departments need to be resourced with suitably experienced social workers with capacity to do the work and who are not overloaded with crisis cases.  In addition, it is helpful where the local authority has a suitably experienced team to do parenting assessments.

Recommendation 42: Judicial extensions of the 26-week limit. Where the way forward for the child is clear (for example, a return to the care of the parents has been excluded by the court) but further time is required to determine the plan or placement which in the best welfare interests of the child, consideration should be given to permitting the case to exceed the 26-week statutory time limit.

If this recommendation is accepted, it is essential that the judicially approved extension and the consequential length of the proceedings are recorded separately from conventional proceedings.

Response: Resolution welcomes this recommendation.

Recommendation 43: A shift in focus on bundles: identifying what is necessary. There must be compliance with the provisions of FPR PD27A, but we recommend, with the increasing availability of electronic bundles, that the focus should shift to the parties, the advocates and the judiciary concentrating on

(1) the principal issues necessary to resolve the proceedings

(2) the relevant issues in dispute at the hearing and (3) the reading list for the judge to determine these issues. A clear route to navigate the bundle is key – whether a paper or electronic bundle.

Response: Resolution agrees with this recommendation.  Our Children Committee members believe that most parties, advocates and judiciary are taking this approach.

Some local authorities still don’t have an e bundle system.  Such should be rolled out across the system to avoid the need for paper bundles.

Recommendation 44: Fact-finding hearings: only focus on what is necessary to be determined. There needs to be a culture shift in acknowledging that only those issues which inform the ultimate welfare outcome for the child need to be and should be the subject of a fact-finding hearing by the court. It should be rare for more than six issues to be relevant.

Response: Resolution supports this recommendation.

Taking an approach that it should be rare for more than six issues to be relevant could be helpful, for example, where parents seek to make allegations which are not relevant to threshold part of fact-finding.

Recommendation 45: Additional hearings: only where necessary. The judiciary and practitioners need to be more acutely aware of whether

(1) a further hearing is necessary and, if so, why; and

(2) the directions proposed to be made are necessary for the fair conduct of the proceedings and are proportionate to the identified issues in the case. Mere inactivity, oversight or delay is never a just cause for a further hearing and a concomitant delay in concluding proceedings. Thus, it should be recognised by all, including the LAA, that advocates’ meetings, which should include LIPs, play a vital role in ensuring a case is concluded expeditiously and fairly.

In order to reduce the number of hearings and to ensure compliance with the 26-week limit it is important that the following issues are addressed at the earliest possible stage of the proceedings:

  1. the identity and whereabouts of the father and whether he has parental responsibility for the child;
  2. the potential need for DNA testing;
  • whether a family group conference has been held, and with what outcome;
  1. the need to identify at an early stage those family or friend carers who are a realistic option to care for the child (thus avoiding scenarios where significant resources are devoted to lengthy assessment of numerous individuals who are not a realistic option for the child); and,
  2. the disclosure of a limited number of documents from the court bundle to family and friends who are to be the subject of viability assessments in order to ensure the same are undertaken on an informed basis.

Response: Resolution agrees with this recommendation but it is not the experience of our Children Committee members that further hearings take place because of mere inactivity, oversight or delay and that should not be the case.

Para 275 recognises what practitioners should know.

Recommendation 46: The promotion nationally of consistency of outcomes. Whilst recognising the constitutional importance of judicial independence, consideration should be given to the means by which a greater degree of consistency can be achieved to the judicial approach to case management and the nature of the orders made at the conclusion of the proceedings.

Response: Resolution agrees with this recommendation.

Comments on the best practice guidance, set out in appendix F1 – F5

F1 para 16- We query who is to produce any document following each advocates’ meeting.  This all seems to be covered by case summaries, position statements and the minutes proposed from advocates’ meetings.

Para 18 – Templates for position statements are unnecessary and these don’t allow for analysis and are too prescriptive.

F4 Para 29 – There can be circumstances when it is helpful to list a final hearing before IRH to avoid delay.

Para 31 – Guardians need to undertake proportionate working and position statements can be sufficient for IRHs, especially if not overly restricted by any template.

Special guardianship

Recommendation 47: SGO assessments and SGSPs. SGO assessments and SGSPs should be robust and comprehensive and compliant with regulations. Timetabling for the provision of such assessments should be realistic to provide for this.

The assessments and support plans must comply with and address all of the statutory requirements and consider all matters both in the short term and in the long term.

In order to ensure the assessments and support plans are of a sufficiently high quality and to ensure the court is able to make a fully informed welfare decision, the following will need to be addressed:

  1. whether there has been adequate attention paid to/time taken to build relationships and develop (and observe) contact between the child and the proposed SG. This may well be a vital component of a rigorous SGO assessment if the initial phases of the assessment are sufficiently positive to indicate such contact is in the welfare interests of the child and where the court is satisfied that such a step is not prejudicial to the fairness of proceedings;
  2. where such relationship-building work has not (for whatever reason) formed part of the assessment process itself, it is likely that further time will be needed to allow this work to be carried out before proceedings are concluded (e.g. through extension of the 26-week time limit). This may particularly arise as necessary where early work to identify prospective carers and begin assessment prior to proceedings was not carried out;
  • where there is little, or no, prior connection/relationship between the child and the prospective special guardian and after an the analysis of all the available evidence and of child’s best interests, it is very likely to be in the child’s best interests that the child is cared for on an interim basis by the prospective special guardian (e.g. under an ICO) before any final consideration is given to the making of any SGO. There is a debate amongst professionals and the judiciary about whether
  • care proceedings should be extended beyond the 26 week timetable to enable the court to allow further time and assessments before deciding to make a SGO or
  • where a lengthy period of time is likely to be required before the court could consider making a SGO, the proceedings are concluded with the making of a care order on the basis that the LA will assist the proposed SGs in making a future application for a SGO. One important benefit of this approach is that the provisions of the SGSP will be informed by the needs on the ground of the child and of the SGs rather than on assumptions and expectations of what will be required to achieve a successful long-term placement;
  1. where a party proposes the court should make an SGO, consideration should be given at an early stage to the issue of joining the proposed special guardian as a party to the proceedings and if joined consideration should be given to the funding of legal representation for the proposed special guardian.

Response: Resolution broadly agrees with this recommendation and the analysis of the interim report.  On balance, we think an appropriate extension to the care proceedings to fully assess contact between the SG and the chid within those proceedings can be beneficial for all parties involved.

Legal aid funding applications for special guardians need to be treated with more urgency by the LAA.

An urgent policy decision is needed on whether special guardians should get non means and non merits tested legal aid if their assessment is positive.

There also needs to be a core understanding in the courts on SGO support, perhaps needing a practice note and every local authority should have a policy about kinship payments.

Families having to take on the supervision of the birth parents’ contact under an SGO is often the cause of a lot of stress and difficulty and pressure on the placement for some families. Some families won’t be able to supervise birth family contact and may need ongoing local authority support to do so (including the local authority providing supervised contact resources). This is a significant area of difficulty at the end of a case and may contribute to breakdown/placement difficulties if the right support is not given.

Recommendation 48: Better training for SGs. Consideration should be given by local authorities to providing training to proposed special guardians, and to take adequate steps to prepare them for caring for the child. We have regard to the training and preparation afforded to prospective adopters. This should include consideration of the DfE publishing regular data analysis on the number of approved applications made by local authorities that provide funding from the ASF at national and local level including the amount approved and the focus of the intervention.

Response: Resolution welcomes this recommendation, but we understand from the local authority perspective that there is a resource issue here.  There may be timescale issues to be addressed where training is not available in the timeframe of the court case.

Recommendation 49: A reduction in supervision orders with SGOs. Save for cogent reasons, a supervision order should not need to be made alongside an SGO. Where cogent reasons are found to exist, the order should contain a recital setting out the same. A supervision order should not need to be used as a vehicle by which support and/or services are provided by the local authority. All support and/or services to be provided to the special guardian and/or to the child by the local authority or other organisations should be set out in the SGSP. The SGSP should be attached as an appendix to the order making the SGO. For the avoidance of doubt, this recommendation is made to effect a culture shift and to ensure there is a focus on

(1) a SGO only being made when there is cogent evidence that it is in the welfare best interests of the child and

(2) the support and/or services to be provided by the local authority to the child and/or to the special guardian are clearly, comprehensively and globally set out in the SGSP.

Response: In our members’ experience, a supervision order is often needed to secure contact arrangements.  We wonder whether the use of supervision orders to assist the parents around accepting the placement and for the purposes of managing parental contact, or how else that is dealt with, needs further consideration.  Extension of the proceedings can serve a useful purpose to help address those issues and lessen the need for a supervision order.

Recommendation 50: Renewed emphasis on parental contact. Prior to the making of a SGO, the issue of parental contact with the child who may be made the subject of a SGO should be given careful consideration, in terms of

(1) the purpose(s) of contact;

(2) the factors which are relevant in determining the form of contact, direct or indirect, and the frequency of contact;

(3) the professional input required to support and facilitate the same and

(4) the planning and support required to ensure the stability of the placement in the context of ongoing contact.

Response: Resolution supports this recommendation.  We reiterate the point above about purposeful extension of the proceedings in some cases.

S20/s76 accommodation

Recommendation 51: Appended guides. We have produced

(1) a good practice guide, appendix H1,

(2) a flowchart of good practice, appendix H2,

(3) a simplified explanatory note for older children, appendix H3 and

(4) a template s 20 / s 76 agreement, appendix H4.

Our primary recommendation is that these guides be circulated and used.

Response: This good practice should be happening in any event, but it would be helpful to promote these guides.

Recommendation 52: No time limits on s 20 / s 76 – but agreement at the start. There should be no imposition of time limits for the use of s 20 / s 76. There are no legal time limits in place. The imposition of time limits will be counterproductive. However, it is recommended that where possible the purpose and the duration of any s 20 / s 76 accommodation is agreed at the outset and regularly reviewed.

Response: Resolution agrees with this recommendation.

This recommendation and/or supporting guidance should make clear that agreement/consent can be later withdrawn.

Recommendation 53: Focus on independent legal advice. Where possible, those agreeing (or not objecting) to s 20 / s 76 accommodation should do so after receiving independent legal advice. This is equally important for older children, i.e. 16 and older.

Response: Resolution agrees with this recommendation.

Recommendation 54: Local authority implementation of the good practice guide and a review of their functioning. Each local authority is encouraged to put in place such measures as are necessary to implement the good practice guide and to ensure that social workers are supported in making the best use of this important statutory provision. It is further recommended that each local authority has in place such measures as are necessary to ensure that each s 20 / s 76 accommodation is registered and that senior managers (or persons nominated by the senior manager) access and regularly review the progress and compliance of each accommodation with the good practice guide.

Response: Resolution supports this recommendation.

Recommendation 55: On-going training / education on the proper use of s 20 / s 76. After publication of the good practice guides, a programme of education is necessary to ensure that all of the relevant professionals understand an apply the guide correctly. It is recommended that:

  1. each DFJ area should distribute the guides to the judges, local authorities and local practitioners;
  2. each local authority to provide training to senior staff and front-line staff within a prescribed time frame;
  • each local family justice board to provide and meet any further identified need for training;
  1. training and the material for training should have a national oversight and coordination to ensure consistency. This may be achieved through or in consultation with the FJB.

Response: Resolution supports this recommendation.

Recommendation 56: A process of feedback and review on the proper use of s 20 / s 76. Set up a structure through which a subgroup of the working group (or of another body, such as the FJB) can receive feedback on the operation of the good practice guides in practice. It is recommended that feedback be given by the judiciary, practitioners, front line social workers, families and children who are involved in the process. Also, review the guides in 24 months to identify any need for revision or further guidance. Further consideration can be given to a national assessment and accreditation system to include training for the use of s 20 / s 76 and to consider expanding any proposed training on permanence to include s 20 / s 76.

Response: Resolution supports this recommendation.

Recommendation 57: Further consideration of and guidance on s 20 / s 76 and significant restrictions on a child’s liberty. There is a need for clear guidance in relation to placements that place significant restrictions on a child’s liberty. That needs to address, in particular, s 20 accommodation.

Response: Resolution supports this recommendation.

Comments on the best practice guidance, set out in appendix H1 – H4

H1 – The table beginning on page 240 is helpful but does not refer to those cases where proper court consideration may lead to a long term s20 placement being appropriate (i.e. where orders are not needed).

Longer-term changes

Local authority decision making 

Recommendation 1: Consideration of pre-birth support for families. A significant proportion of the cases currently presenting for urgent applications involve newborns and infants. These cases come with a very high degree of distress. They pose significant challenge to all involved in the decision making. The need to issue in such cases may well be evidenced but a measured and planned approach could be achieved pre-birth which may have the potential to avoid the need for proceedings. We would look to the work of the Nuffield Family Justice Observatory report, Born into Care (October 2018), to consider support for this group of families and to work in partnership earlier to avoid proceedings.

Response: Resolution supports this recommendation.  In our members’ experience there is scope for some authorities to better plan pre-birth work and ensure that pre-birth assessments take place so that where necessary proceedings are issued in a planned way.

Our members suggest that a focus on and bespoke support for first time parents, particularly those who are young, is a priority area.

PLO and pre-proceedings

Recommendation 2: Re-considering the role of Cafcass pre-proceedings. Further consideration should be given to the role of Cafcass pre-proceedings. This would have resource implications as well as requiring clarity as to its role in pre-proceedings, whilst ensuring the independence of its role is preserved. The legality of Cafcass involvement pre-proceedings is still under consideration. One possible model may be based on Cafcass accepting an invitation to provide input at this stage in cases of particular complexity or gravity.

Response: We agree this issue requires further consideration.

Future scope for advocates for children of a certain age, especially where children have been in s.20 accommodation for some time, might also be explored.

Recommendation 3: Public funding for parents during pre-proceedings. The available legal aid funding for parents during this process requires urgent review. The funding needs to be at a level that ensures the parents are properly represented by a suitably qualified and experienced legal representative through this process. This is likely to have a significant impact by contributing to the reduction of the number of cases that result in court proceedings and where proceedings are issued, by reducing the cost of those proceedings by having the best evidence available for the court through the pre-proceedings process.

The wider socio-economic benefits will include parents not being the subject of statutory intervention where their needs and difficulties have been addressed at an early stage thus and their children not being the subject of further state intervention when they are adults, thus “breaking the cycle” at multiple opportunities.

Response: Resolution supports this recommendation.  The recommendation should make clear that such a review should be on the basis of no change to the scope of funding during proceedings or for other areas of family legal aid.

Investing in a good PLO meeting in appropriate cases can assist families and head off proceedings.   Consideration needs to be given to payment of a meeting fee per meeting at a level to make it economically viable for more senior practitioners to attend.

The application

Recommendation 4: Research into the regional variation in the proportion of urgent applications. Research is required into the reasons for the differing incidence of urgent applications between different areas with a view to good practice guidance to reduce the frequency of urgent applications where appropriate. This is an important and urgent area for research which could form an early part of the work of the Nuffield Family Justice Observatory.

Response: Resolution supports this recommendation.

Recommendation 5: Research into the frequency and use of police protection and EPOs. Compilation of reliable data is required about

  • the number and proportion of EPO applications/orders made in each DFC and
  • (ii) the number and proportion of EPOs which do not result in care applications.

This data should be followed by

  • research into the reasons for difference in approach to the use of police powers/EPO applications in different areas and the circumstances in which police protection/EPOs are not followed by care proceedings, together with
  • (ii) good practice guidance on the circumstances in which police protection and EPO applications are appropriate. This is an area in which the evidence is presently limited and (at least some) is unverified. The importance of this issue and lack of other evidence/research also merits early consideration by the Nuffield Family Justice Observatory.

Response: Resolution supports this recommendation.

Recommendation 6: Reconsidering planning for newborn babies, including the role of Cafcass pre-proceedings. Consideration of the means by which planning for newborns can be improved, including the potential role of Cafcass pre-birth.

Response: Resolution supports this recommendation.

Recommendation 7: New IT system. Urgent development of the early work of the HMCTS Family Public Law and Adoption reform project is required to provide a unified system of digital/electronic working (with IT support) in the Family Court.

Response: Resolution supports this recommendation and notes paragraph 97 of the report.

Recommendation 8: An improvement in the range and quality of data collection/ analysis by HMCTS / MoJ. The range and quality of data collection/ analysis by HMCTS and MoJ should be addressed to provide a reliable evidence-base.

Response: Resolution supports this recommendation.

Recommendation 9: A review of the funding of the family justice system. To be undertaken by Government and address the resourcing of all areas of the family justice system. Within the Family Court, there should be a realistic analysis by MoJ/ HMCTS of caseloads to ensure the judicial/administrative resources reflect the comparative workloads in each area.

Response: Resolution supports this recommendation.

Case management

Recommendation 10: A review of recruitment and resourcing of the family justice system. To be undertaken by the Government. Within the family court there should be more effective systems for recruitment and long-term planning by MoJ/HMCTS to ensure the right level of judicial and administrative resources are in place to reflect the comparative workloads in each area.

Response: Resolution supports this recommendation.

Special guardianship

Recommendation 11: On-going review of the statutory framework. Guidance and regulations relating to fostering and adoption are regularly reviewed and have evolved over time. It is essential that the same attention and care is paid to special guardianship, drawing on the views and expertise of those working within the child welfare and family justice systems as well as the children and families impacted. Review of primary and secondary statutory provisions relating to SGSPs seems particularly important to prioritise and strengthen.

The Government should undertake regular reviews of the primary and second statutory provisions relating to SGSPs to ensure the same are meeting the needs of children and young people and the SGs; in Wales, the secondary legislation and accompanying guidance (or codes) require review by the Welsh Government. This should include a review of the placement regulations to consider whether an option for local authorities to place with prospective special guardians under a care order might be an appropriate development.

Response: Resolution supports this recommendation.

Recommendation 12: Further analysis and enquiry. Further detailed analysis and enquiry should be undertaken (for example, by the MoJ DfE and Welsh Government in discussion with relevant stakeholders) in relation to the placement of children with special guardians to include

(1) whether the fostering regulations require review and revision in relation to family and friends carers and

(2) whether the Children Act 1989 should be amended to provide the court with the power to make an interim SGO (we note the concept of an interim SGO does not accord with the position of FRG)

(3) whether to impose a further duty on a local authority to explore whether there are potential carers who could be appointed a SG for the child accompanying statutory provisions to further support local authorities to gather this information and

(4) improved national support provisions for special guardians and the children they are raising (including, in line with recommendations from the FRG’s Care Crisis Review: Options for Change (June 2018), a right to a period of paid leave from work for the child to settle in, akin to paid leave following the making of an adoption order; that the household is exempted from the benefit cap and the spare room subsidy; the same entitlement to support provisions including Pupil Premium Plus and access to the ASF, regardless of whether or not the child has previously been looked after).

Response: Resolution supports this recommendation.

Recommendation 13: A review of public funding for proposed SGs. The Government should review the need for increased expenditure to provide public funding for proposed SG(s) who may seek to assume the long-term care of a child and whose assessment as SGs has been approved by the court; in Wales, the secondary legislation and accompanying guidance (or codes) require review by the Welsh Government.

Response: Resolution supports this recommendation.

The role of lawyers in supporting and preparing proposed SGs, guiding the assessment process and assisting the court should be part of this review.  Our view is that non means and non merits tested legal aid should be available for initial freestanding advice for a proposed SG (remunerated on a level 2 basis); and for a proposed SG joined to care proceedings where there is a positive assessment (with a merits test if the assessment is negative).

Recommendation 14: FGCs. Effective pre-proceedings work, including FGCs, or a similar model for engaging with the family, being offered as a matter of routine and the use of the FRG’s Initial Family and Friends Care Assessment: A good practice guide, should enable early identification of those family or friend carers who are a realistic option to care for the child. This should avoid scenarios where significant resources are devoted to lengthy assessment of numerous individuals who are not a realistic option for the child.

Response: Resolution supports this recommendation.

S20/s76 accommodation

Recommendation 15: A review of public funding for those with parental responsibility “signing up to” s 20 / s 76. Review of the availability of legal aid for parents who are considering s 20 / s 76 accommodation is strongly recommended. The decision to agree to or not to object to accommodation of a child is a significant step. The leading judgments in this area demonstrate the real issues that can arise from such agreements. The proper use of these provisions can be very important in achieving the best outcome for the relevant child that may continue to benefit his/her into adulthood and beyond.

The provision of legal advice on this limited issue will be a highly cost-effective investment as it is most likely to contribute to a reduction in the number of proceedings that are issued.

This should be considered in the context of the varied applications of these important statutory provisions. The provision of legal advice will help to ensure compliance with the relevant rules and avoid primary and possible satellite litigation (for example, judicial review or claims for compensation).

Looking ahead, in the longer term, achieving more favourable outcomes for children outside the proceedings can also lead to breaking the cycle of care when those children are adults. Not only will this bring enormous social benefits, it will also assist in saving on expenses of litigation.

It is recommended that a review considers necessary amendments to the Civil Legal Aid (Financial Resources and Payment for Services) Regulations (2013) to enable parents and older children access to independent legal advice when asked to sign an agreement to accommodate under s 20 / s 76, under reg 5(1)(e).

Response: Resolution supports this recommendation.  Pre-proceedings s 20 advice (paid on a fixed fee basis) would be of benefit to families and the system as recognised by the working group.

Recommendation 16: Investment in the use by local authorities of a multidisciplinary approach. Investment in the multidisciplinary approach is essential to the success of these recommendations and those made in other parts of this document. This will require better coordination between local authorities, health authorities and education. Such an investment will assist in diverting appropriate cases away from court proceedings and where resorting to court proceedings is necessary, it will ensure that the appropriate evidence is readily available to the court to progress the matter to a conclusion.

Response: Resolution supports this recommendation, albeit that we are mindful of existing good practice in some areas and the need for more resources across the system.

An FDAC approach might be more strongly encouraged in the final report.

Resolution, September 2019