Crisis in Child Care Cases?

It was only recently that I read comments in the media from President of the Family Division, Sir James Munby, about the significant increase in the volume of care cases being dealt with by the courts.

He openly expressed concern about the rise in costs, particularly the longstanding practice of children in care proceedings being represented by a Guardian appointed from CAFCASS, and in court by a solicitor upon instruction from the Guardian. Potentially this is a doubling up of effort!

However, whilst expressing his concern, the President nevertheless felt that this was a practice which should essentially remain in place. The roles of the Guardian and the child’s solicitor are very different, and it’s difficult to see how one role could interlink with the other.

The President also referred to the significant rise in care cases, with an increase in a single year of 35 per cent in 2009-10 with the overall increase over a 5 year period up to 2015 of 26 per cent.

Will the impact of such an increase bring the courts to crisis point? The President certainly thinks so – and with good reason. Courts will struggle to cope with what, based on current trend, is likely to be a continued increase.

There is no clear view as to why the volume has increased so dramatically. Ultimately, it’s the decision of the Local Authority as to whether care proceedings are issued or not. Therefore the increase in cases must relate to the decision making process of each Local Authority.

Either we are experiencing a huge increase in cases of alleged neglect or abuse that require court intervention (although it is difficult to see how this alone could account for such a rise), or there is a perception on the Local Authority that proceedings should be issued, and sooner rather than later.

Partly this could be as a result of criticism from the courts about the overuse of Section 20 of the Children Act 1989 which provides for voluntary accommodation. This was only ever intended to be a short term measure while assessments are carried out and not, as is sometimes the case, to be used for several years.

Are we also witnessing an element of self-protection? High profile public enquiries following deaths of children (particularly “Baby P”) may have made it more likely for the Local Authority to want to formalise their involvement by putting matters in the hands of the court for a decision.

Whatever the reasons, they are complex. It is expected that the courts will need to revise their practices; perhaps re-deploy Judges to the most pressurised courts, and to seek to resolve cases more quickly and efficiently – although there is of course already a requirement for cases to be concluded within 26 weeks.