WALES/ENGLAND – Top family judge urges earlier involvement of local authority lawyers

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Local authority lawyers need to get involved earlier – advising and assisting their social work clients – than is often the case, the President of the Family Division has argued.

In his second View from the President’s Chambers, Sir James Munby added that a “properly organised legal planning meeting is invaluable – indeed, the key to achieving timely outcomes to care proceedings”.

The most senior family judge also suggested that the employment of a local authority case manager was vital. This was a key lesson from the Tri-borough, Bi-borough and similar projects, he said.

Sir James stressed the crucial role of local authorities’ compliance with a revised Public Law Outline that will be published later this month.

The President confirmed that this interim version of the PLO will come into effect on 1 July 2013. It will then be superseded in April 2014 by a final version.

The new PLO will put a much greater emphasis than hitherto on the first hearing, which will be re-named to bring out the key fact that it is to be the effective case management hearing, the President said.

Sir James added: “This fundamental change is vital to the entire process of reform in dealing with care cases. If the first case management hearing is effective, then we will meet the 26-week deadline; if it is not we will not.

“An effective first case management hearing requires – necessitates – that the local authority, Cafcass and the case management judge all play their parts.”

The President said that current thinking was that, to achieve this, the first case management hearing should take place on Day 12. However, this is to be evaluated in the light of experience between July 2013 and April 2014.

“Crucial to what everyone else is able to do is compliance by the local authority with its obligations under the revised PLO,” he added.

Sir James said the key principle was very simple: “The local authority must deliver its material – the right kind of material – on Day 1. If that does not happen, the entire timetable will be thrown out.”

The judge then set out his view on what the local authority must deliver, and explained what he meant by the right kind of material.

He said there would be two key elements in the revised PLO: “First, the clear distinction it draws between (i) those documents which are to be filed with the court and served on the parties, (ii) those documents which are to be served on the parties but not filed with the court unless directed, and (iii) those documents which are to be listed for the parties but not served unless requested.

“Second, the restriction of documents to the most recent, limited to those from the last two years. In other words, both the filing and service of documents is to be more focused, with a concentration on what is relevant, what is central, what is key, rather than what is peripheral or merely historical. At the same time, there is a strong imperative to produce documents that are focused and succinct.”

Sir James went on to set out the nature and length of the social work chronology, the threshold statement and the social work statement as well as the evidence required to establish ‘threshold’.

The President said: “We must get away from existing practice. All too often, and partly as a result of previous initiatives, local authorities are filing enormously voluminous materials, which – and this is not their fault – are not merely far too long; too often they are narrative and historical, rather than analytical.

“I want to send out a clear message: local authority materials can be much shorter than hitherto, and they should be more focused on analysis than on history and narrative.”

Sir James said the work done by the local authority in the period pre-proceedings – ‘front loading’ – was vital. “Often it can divert a case along a route which avoids the need for proceedings. When that is not possible, and proceedings have to be commenced, work done beforehand will pay rich dividends later on.”

The President suggested it was not his place to tell local authorities how to organise themselves. In addition to the earlier involvement of lawyers, he said two other features of pre-proceedings work had a direct and crucial bearing on the future smooth running of a case.

These were the sending by the local authority to the parents of a timely ‘letter before proceedings’, as it triggered the availability of public funding for them, and the need for pre-proceedings work to focus on identifying and evaluating possible family carers and discussing with the parents their potential need for such support.

Sir James said he hoped that one of the outcomes of the revised PLO would be to re-position social workers as trusted professionals playing the central role in care proceedings “which too often of late has been overshadowed by [the] unnecessary use of and reliance upon other experts”.

He added: “Social workers are experts. In just the same way, I might add, Cafcass officers are experts. In every care case we have at least two experts – a social worker and a guardian – yet we have grown up with a culture of believing that they are not really experts and we therefore need experts with a capital E. The plain fact is that much of the time we do not.

“Social workers may not be experts for the purposes of Part 25 of the Family Procedure Rules 2010, but that does not mean that they are not experts in every other sense of the word. They are, and we must recognised them and treat them as such.”

 

SOURCE: Local Government Lawyer

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