Over a decade ago now the Court of Appeal took the opportunity to consider the balance of power between local authorities and the Courts when a child was brought into the care system and how that child should be treated once a final order was made. In one of the first cases to come before the Court in this area following the introduction of the HRA 98 the Court looked at whether or not the provisions of the Children Act 1989 were compatible with the Article 8 right to respect for private and family life.
The case involved two joined appeals, both by families whose children had been removed from their care. In both cases the local authority made a range of promises in its final care plan about the level of support which was to be provided to the family. In each case that support failed to materialise. The parents case was that the Children Act should be interpreted in such a way as to provide for an ongoing power for the Court to supervise the local authorities implementation of its care plan once a final Care Order was made and that the lack of any such provision would mean the Act was incompatible with the Article 8 right.
The Court found that such a provision could be read into the Act while accepting that the historical position that once a care order was made it was for the local authority to implement it. The Judges clearly had in mind real concerns that local authorities were failing to meet the needs of children in care as highlighted in the department of Health publication Someone Else’s Children. The Court concluded that it was possible to read in a system of “starred milestones” in which elements of a care plan could be highlighted. If a local authority failed to meet those elements for any reason the matter could be returned to the court, either by the local authority, parent, child or guardian. Such a system had been proposed at the at the Presidents Conference for Family Division Liaison Judges following concerns that the Children Act allowed for no such directions. Indeed that was a deliberate change in the legislation as such directions had been possible under the previous wardship jurisdiction.
The case was appealed to the House of Lords which stressed the clear division between the role of the Court and that of the local authority. In its view parliament had been clear. Once a care order is made the responsibility for managing and implementing it fell to the local authority. The Court could not exercise an ongoing supervisory jurisdiction. It was not equipped with the resources or skills necessary to exercise ongoing supervision of the day to day activities of every child in care. The Court of Appeals attempt to use s3 to read the starred care plan system into the Act went well beyond statutory interpretation and into amendment and as such was impermissible. The starred care plan idea died before it even began. However, that was not the end of matters. Lord Nicholls was as concerned as the Judges in the Court of Appeal over the failure by local authorities to implement the promises they made. He identified that there was a pressing need for Government to attend to the practical and legal problems identified by the Court of Appeal and to consider whether some degree of Court supervision of local authority’s discharge of their parental responsibilities might bring about an improvement in the quality of care provided by local authorities.
It is the changes introduced by Government to address these concerns that I want to look at today and also to consider how those changes might also be affected by further amendments proposed by the Family Justice Review and incorporated in the draft Children and Families Bill.
The government’s response was to amend the existing regulations on case review to include an obligation that if a local authority is looking after a child then they must appoint an independent reviewing officer for that child. The IRO’s role was to monitor the performance of the local authority, manage and chair the review of their case and ensure the child’s wishes and feelings were given due consideration by the local authority. The IRO was also required to bring failures to implement the care plan to senior management in the local authority and was given the power to refer a child’s case to CAFCASS where they considered it appropriate to do so. In addition the IRO had to be independent, at least to the extent that they were not directly involved in the management of the case or under the management of someone who was managing the case or who controlled the resources allocated to it. The changes came into force in September 2004.
At the same time the role of CAFCASS was extended. On receipt of a referral from an IRO CAFCASS must appoint an officer of the service to investigate the situation and submit a written report within two weeks to the IRO, local authority Chief Executive and anyone else they consider appropriate. CAFCASS was also given the power to issue proceedings on behalf of a child who was referred to them by an IRO under s7 HRA, Judicial Review or other proceedings.
It is worth bearing in mind that at the Presidents Conference for Family Division Liaison Judges where the starred care plan proposal was discussed the view was that it was unlikely to require more than about 200 referrals per year across the country. How then have IRO’s used the powers which the new regulations granted them?
By 2012, eight years into the operation of the new system, CAFCASS had received a total of eight referrals from IRO’s. In only two of those referrals did the CAFCASS officer meet the 2 week requirement to undertake their investigation and report. In none of those cases did CAFCASS seek to use its powers to issue proceedings on behalf of the children concerned including in one case where it took over 7 months to conclude and where the delay was due to failure by the local authority to provide the necessary documentation.
This system is supposed to provide an independent overview and route to challenge decisions made by local authorities which are not in accordance with the agreed plans. On the face of it it is failing to do so. One concern is that independent reviewing officers are not sufficiently independent to carry out their role. The legislation does not require IRO’s to be completely separate of the local authority, merely separate from those managing the case or holding the purse strings. However, how does this operate in practice? IRO’s largely remain part of the Children and Families department. While they may not be directly managed by those managing individual children’s cases those line management responsibilities must merge at some point on the line management tree. While that may be at a point above those with direct budgetary responsibility it is likely to be those who have wider organisational and budgetary control such as at Director or Deputy Director level. This places an IRO in the difficult position of having to report to those who wield actual control over their Department while being critical of other branches of its performance.
This tension was highlighted in a letter from the National Association of Independent Reviewing Officers to the then Minister for Children, Tim Loughton MP. In that letter concerns were raised about IRO’s being threatened with disciplinary action for raising concerns, of requiring them to have senior manager approval before challenging a decision or making a referral, of attempts to supress or edit IRO reports due to be presented to OFSTED and of having a contract terminated due to legitimate if inconvenient challenges. Such situations serve to demonstrate the real difficulties faced by IRO’s in operating as a truly independent voice for the child.
Further evidence is provided by the interim report of the National Children’s Bureau research into the role of IRO’s. That report highlighted real concerns about workloads with many IRO’s handing in excess of 90 cases where the recommended number is 50-70. In addition there were concerns around consultation and information sharing, monitoring of care plans, contact with looked after children, lack of access to independent legal advice for the IRO and the child, managerial support and a failure to drive improvements in service.
This creates a situation of serious concern for children within the care system as the IRO is often the only voice they have. At the conclusion of care proceedings a child’s right to independent legal representation comes to an end with the termination of their legal aid certificate. Similarly the appointment of an independent Children’s Guardian terminates. The making of a final care order vests parental responsibility with the local authority and they can limit the extent to which the natural parents can exercise their responsibility. Parents whose children are removed into care permanently are often restricted to fairly limited direct contact and can drop out of children’s lives or their involvement becomes peripheral.
This is one of the reasons why getting the care plan right at the conclusion of care proceedings is so important. The Care Plan should tell all of the parties to a case what the local authority proposes to do in relation to the child, what services will be provided, who will arrange them, when they will be in place and what will happen if matters do not go as planned. Obviously the care plan is not carved in stone, it must be a living document which changes to reflect the needs of the child but it should be a clear statement of that particular child’s needs at that point in time which can be reflected on later and used as a starting point to ensure that child’s needs are met. Effective care planning is a crucial element of any application for a care order.
While the Re S, Re W case settled the point around division of responsibilities between the court and local authorities it emphasised the essential nature of care planning and the role which the Court played in ensuring that the decision made was the one which was in the best interests of the child. It was important that the Court had before it a plan which was sufficiently firm for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness and the level of detail will vary from case to case and the Court must have in mind the importance of avoiding delay.
Given these comments it is disheartening to see the recommendation of the Family Justice Review to remove the Court from many of these considerations. The Review proposes to limit the role of the Court to considering who the child should live with and contact arrangements. The Court should not review the detail of the care plan such as the nature of the child’s placement, whether sibling placements would be appropriate, therapeutic support for the child, health or educational needs or care planning. The FJR claims that removing these considerations will result in a reduction in delay and also costs. It is difficult to see how this will be the case. These are all issues which the local authority will need to consider anyway and which may well require expert assessment. The work should already have been done by the time a final order is made. It is also often information which the court must consider before it comes to it’s final decision. For example, how can the Court decide where a child should live without first considering if they might be placed alone or with their siblings.
These amendments are now incorporated into the Children and Families Bill which provides that the Court is only required to consider who the child should live with together with contact issues when considering whether or not to make a care order.
What then is the position of an older child entering the care system or one who has been within it for some time? New children will enter the system with a care plan set by the local authority. The child will have had some input into that through their solicitor and Guardian but there will be no independent Court review. Once proceedings end they will have no access to direct independent advice. They will be dependent on an Independent Reviewing Officer who is anything but and the good graces of the local authority to meet the promises they make in their care plan. If those obligations are not met they may well have no adult available to support them. Their parents may not be involved to speak up for them, their role in reviews is limited and local authorities are only required to demonstrate that they have taken their wishes and feelings into account. Even for an older child who has capacity there is no requirement that their wishes should be determinative of what happens to them.
Furthermore children in the 15-17 year old bracket are about to enter the leaving care system. Children on the edge of adulthood, especially those in care, need to be prepared for the move into adulthood and independence. Normally this task falls to parents or carers but those children in care are dependent on their local authority. Local authorities owe wide ranging duties to children leaving the care system as a result of the changes introduced by the Leaving Care Act 2002. That process needs to be properly planned in conjunction with the child. Local authorities are required to assess their needs, produce a pathway plan and appoint a personal advisor. They must befriend the child with a view to promoting their welfare even when they cease to be looked after. In some cases these obligations can continue up to the age of 25 where the child remains in full time education.
The obligations on local authorities often involve considerable expense. In an age of austerity there will inevitably be a tension between meeting those obligations and the cost with a temptation on local authorities to reduce costs wherever possible. This situation was highlighted in the recent case of Kebede v Newcastle City Council where the local authority sought to argue that tuition fees were not an expense connected to education or training (which they would be liable to provide support in relation to). Fortunately both the High Court and Court of Appeal disagreed but the case serves as a reminder of the real difficulties which local authorities face.
Given those difficulties and given the vulnerable position of children in care it is more important than ever that those children have access to effective and independent advice and overview of their care plans so that they are able to have a voice in the decisions being made about them. The current system fails to provide that and the proposed changes make things worse. If they are implemented then it may well be time for the Courts to revisit the issue of starred care plans.
– Andrew Watson is a senior lecturer at Northumbria University, Newcastle upon Tyne.
On the Edge of Adulthood 