Target needed to cut length of care proceedings with durations far in excess of 26-week legal limit – peers

The government must introduce a target to cut the length of care proceedings along with an action plan to deliver it, with the average duration now well in excess of the 26-week limit.

The call this week, from a House of Lords committee, came as the head of the family courts announced a “relaunch” of the public law outline (PLO”), which includes the 26-week limit, in the New Year, with the aim of cutting the duration of proceedings.

The Children and Families Act 2014 introduced the 26-week limit for courts to dispose of applications for care or supervision orders to provide certainty for children. While courts may extend the timetable, this should not be routine and they must consider the impact on the welfare of the child in doing so.

Cases averaging 49 weeks

The average case duration fell from 2011 to 2016, from 55 to 27 weeks, but has been rising ever since. In January to March this year, cases took 49 weeks on average, with just 17% completed within 26 weeks, down five percentage points on the year before.

The committee, set up to assess the impact of the 2014 act, said that, while the 26-week limit had generally had a positive impact, highlighting the vital importance of children receiving timely judgments, the duration of cases had become too long.

It found that this had been caused by resource shortages across local authorities, Cafcass and the family courts, and difficulties sourcing expert witnesses, amid apparent variation in the quality and frequency of their use between court areas. This was despite the Children and Families Act making it a requirement for parties to seek the court’s permission to instruct an expert, in order to reduce delays.

The report said reducing case lengths would need more, and better use of resources, but also urged the government to set a “target for the timeliness of public children cases, along with an associated action plan laying out how it aims to achieve this reduction and how it will measure progress”.

PLO relaunch planned

Its call came after the President of the Family Division of the High Court, Sir Andrew McFarlane, announced a “relaunch” of the PLO next month to tackle the duration of proceedings, whose increasing length he attributed to rising case numbers in previous years and Covid-19’s impact on the courts process.

He said delay had become normalised and there was “no current expectation” of meeting the 26-week target. To tackle this, he said he was launching a campaign to “exhort, require and expect every single professional, judge, magistrate or staff member in the system to get back to operating the PLO in full and without exception”.

This would involve minimising the use of experts, in line with the Children and Families Act, keeping the number of hearings to three per case and limiting the court’s decision-making to whether the care or supervision order threshold is met, permanence provisions, contact arrangements and final orders, excluding the wider care plan.

“I do not pretend that what is proposed will be without difficulties, but doing nothing is not an option; currently the system is spiralling in the wrong direction,” he said. “It is my hope that, if we all re-engage fully with the requirements of the PLO at all stages, there will be a radical improvement in the ability of the Family Court to hear and determine public law children cases as we move through 2023.”

Increases in court sitting days

The government said it had invested in cutting waiting times through recruiting more judges, allowing each judge to sit for up to 80 days without prior approval, up from 30 days, and using virtual hearings.

As a result, the number of public law sitting days in the family courts reached 56,000 in 2021, up 2% on the year before.