The next President of the Family Division, Justice McFarlane, has delivered a speech in response to the publication of the Care Crisis Review, in which he makes a series of blunders about the care system and the processes currently in use.
Whilst he rightly points out that the care system is in a state of crisis – CAFCASS figures for May 2018, record the second highest monthly figure for care applications ever received – McFarlane clearly fails to understand the complex nuances faced by children, families and practitioners inside the sector.
In his speech, which was written to coincide with the Review’s launch, he says, “thank heaven for…. the 26 weeks and the reform package that Sir James Munby so effectively introduced 5 years ago”. The result was that, when the rise in numbers began to kick in, the judges and the courts were “match-fit” to process and determine the applications in a timely manner.”
The truth is much less straightforward. Whilst the 26 week timetable was brought into effect to help speed up adoptions, primarily to prevent children from languishing inside the system, it did very little on that front, with many cases falling outside the suggested time frame, over and over again. Calls from inside the sector to remove the time frame, came from all corners – including a senior family law judge Researching Reform spoke with, who confirmed the worst: that the 26 week timetable was nothing more than a badge of honour for judges looking to get promotions, and was having a disastrous effect on truth and justice.
Social workers too, have begun to complain about the time limit, saying that it puts parents who are trying to turn their lives around in an impossible position, because the time frame is just too short for any real improvements to take place. Whilst the time frame gives judges the opportunity to speed through cases, and try to get matters off their desk, little else is being achieved. In reality, the time frame has done nothing for the Family Court’s problems, as it continues to be inundated with increasing numbers of care applications, or for children who could remain safely with their parents if time, and smart planning, were on their side.
Calling the system ‘Match-Fit’ is also telling. These cases are not matches, or sparring grounds for lawyers, though that’s how they are viewed by the legal sector. These cases represent people’s real lives, and the decisions made inside these courts will affect them and their children, forever.
The so-called reforms McFarlane alludes to, have also been useless. The starkest indication on that front lies in the ongoing, and rising, complaints against social workers, lawyers and councils, and the never ending ethics and legal breaches that are clearly documented, but never addressed, even when called out by Presidents inside the system.
Window dressing a system that has gone wild, is not the same as addressing problems and improving outcomes for everyone.
McFarlane also mentions the risk of future harm threshold, but his comments show that he is out of his depth on this topic. He glosses over this cornerstone of the Children Act 1989, which is an astounding piece of legislation for its focus on children and its elegant attempt to balance children’s rights with their best interests, but it is not flawless. The incoming President fails to pick up on the controversial ways in which future harm is interpreted, and the fuzzy quasi-definitions that never really offer a scientific take on the test.
Indeed, McFarlane seems particularly preoccupied with the 26 week timetable, choosing to make this element of the court system within public family law proceedings his focus, despite the Care Crisis Review covering a wide range of topics and issues within the care system. The entire speech reads like a superficial gloss by a President who still not does not have a global view of child welfare in Britain.
The Care Crisis Review is made up of eight reports, which you can access here. It offers 20 recommendations on how to improve the system, which include good practice, research, better communication with families and children and regular inspections. As wonderful as all that sounds, the ideas are not ground breaking, and will no doubt frustrate those inside the system who have known what needs to be done, and how to do it, for a long time.
For those of you who don’t want to wade through the 51 page Review, there is a helpful summary outlining the key recommendations.
We also recommend reading the Contributing Factors report, which looks at suggested factors relating to why children find themselves in care, and the variations across councils, of care applications and their duration.