[This is a guest post by Victoria Butler-Cole KC, a colleague of mine at 39 Essex Chambers, co-founder of the Mental Capacity Reports, and extremely experienced Court of Protection barrister]
Anyone who has been involved in welfare cases in the CoP for a long time will have observed that cases are taking ever longer to be resolved. There is plenty of grumbling about this, but not much suggested by way of practical solutions.
I have spent most of today learning about Child-Focused Courts in the family system, while eating a lot of chocolate-chip cookies and drinking too much coffee. The combination of activities has led me to a wild idea which I thought might be worth sharing with you.
The Child-Focused Courts (previously Pathfinder courts) in the private law family system are proving successful in speeding up proceedings in private law cases, and one of the reasons for their success is that the decision-making process is front-loaded. A comprehensive report is obtained at the outset of proceedings which contains much of the information the court will need, from an independent source (usually Cafcass), and involves discussion with the parties which may result in their acceptance of recommendations made by the assessor even without requiring a court hearing.
On the public law side of the family court, there is a deadline of 26 weeks for welfare decisions to be made for children in public law cases. It often isn’t met, but there is a constant push towards achieving it and the existence of a specific timeframe has surely changed the culture and expectations of professionals. It sits alongside a formalised process for local authorities to follow before proceedings are issued, with parents receiving legal advice before any proceedings are issued.
It isn’t possible or sensible to try and draw a direct parallel between CoP welfare cases and family cases. CoP welfare cases often involve difficult questions as to capacity which ought to be resolved as the first issue. Unlike private law family cases, CoP welfare cases almost always involve at least one statutory body, but unlike public law family cases, that statutory body isn’t always the applicant, and there is no formalised pre-proceedings process that has to be gone through. But cases that go on for years are just as much a problem for P as they are for a child, or anyone else, and they involve a significant use of public resources. Even hearings which are vacated by agreement incur legal costs agreeing consent orders, and the delays in reaching final decisions mean that evidence has to be repeatedly updated, taking social workers and other professionals away from doing their day jobs. And one of the things that seems to be useful in the family system is to try and get cases ready to be decided more quickly – whether by improving the pre-proceedings process of obtaining evidence and looking for solutions, or by getting independent advice and input at an earlier stage once proceedings are issued.
Switching the CoP to a tribunal system, along the lines of mental health tribunals, is something that has previously been considered – one factor in favour of that change was that it could build in independent expertise with tribunal members having expertise in social work, psychology or psychiatry, which might in turn reduce the need for expert reports. That isn’t likely to happen, having been rejected by the government, so how else can this expertise be built in to the process?
There aren’t sufficient court resources to get a Special Visitor to provide a report in every case. We don’t have the equivalent of Cafcass to prepare assessments in every case. ISW instructions can take many months due to workload, and ISWs don’t tend to make recommendations and then go back to the parties to see if they might agree to their proposals (which is a feature of the Child Impact Reports in the private family system). But post-AGNI, we are going to have a surplus of highly-trained and experienced best interests assessors, as the number of DOLS authorisations is going to fall dramatically. CoP welfare cases are not going to fall in number at the same rate, as the disputes about contact, residence and care will still be there, they just won’t come before the court as s21A challenges or applications for community DOLs orders. Since all local authorities will still have CoP welfare cases to deal with, could they come together, perhaps under the auspices of ADASS, to pool resources. I am imagining a pool of best interest assessors who could be instructed jointly by parties to prepare comprehensive reports once capacity was resolved by the CoP. Their remit would be to pin down the statutory body in respect of any public law decisions as to care options, to talk to the parties about their views and proposals, to meet P and P’s representatives, to come up with new ideas or suggestions if appropriate, and to produce some recommendations to move things forward in P’s best interests. They would then go back to the parties to talk through their recommendations and see if there was scope for agreement. All this would happen before multiple witness statements had been filed by the parties, at the earliest possible stage, to try and cut through things, focus on the key issues, and come up with a way forward. More talking, more listening, less writing of witness statements and position statements. Who would pay for it? The local authorities who currently pay for the BIAs as part of the DOLs process, would contribute to the cost of the pool of assessors, and only local authorities who pay in would be able to use the service. The assessor instructed in a particular case would not be one who was linked to the local authority involved, to avoid perceptions of bias. It wouldn’t be cheap, but it might be cheaper than multiple CoP welfare cases that go on for 12 months or longer before final decisions are made.
Would this help? I think it might do. If a new best interests assessor was tasked to produce a report of this sort within say 6-8 weeks, and there were sufficient people in the pool for that to be achievable, it could have a real impact on resolving cases and reducing their duration. There would inevitably be cases which took longer – for example where a statutory body needed to redo an assessment or put a proposal to a funding panel, so the available options were crystallised – but that wouldn’t be every case. There’d need to be some very robust directions requiring parties to engage with the assessor promptly and provide whatever information they requested. There would be cases where it couldn’t be used – most obviously where there was no local authority involved – but quite a few where it could help. I’d be really interested to know what people think and what other ideas people have to get us out of the cycle of ever-longer proceedings characterised by repeated adjournments and delay and change the culture.
