An early process evaluation of the Public Law Outline Tricia Jessiman, Peter Keogh (NatCen); Julia Brophy, Oxford Centre for Family Law and Policy

Study funded by the Ministry of Justice Summary of the Public Law Outline Other factors impacting on Care Proceedings at the time of the study Parameters of the study Quant and qual methods Findings and implications

The Public Law Outline Introduced by the MOJ as a tool for the management of care proceedings cases Principally concerned with s.31 of the Children Act 1989 The PLO, and associated statutory guidance for local authorities, are the two key reforms to emerge from the care review in 2005/6 Trialled in ten initiative areas from summer 2007 Rolled out nationally from 1 st April 2008

Stages outlined in the PLO Pre-proceedings stage (and Pre-proceedings Checklist) Issue and First Appointment (FA within 6 days) Advocates’ meeting and Case Management Conference (45 days from Issue Advocates’ meeting and Issues Resolution Hearing (16-25 weeks after Issue) Final Hearing (40 week target)

Other factors impacting on Care Proceedings The study took place Oct 09-Feb 09 Changes to the fee system for advocacy Assignment of full costs of proceedings to the local authority Baby ‘P’ and Lord Laming’s report Cafcass waiting lists (in England)

Parameters of the study Courts only Process evaluation Early (though in initiative areas, PLO might arguably be more embedded)

Quant methods analysis of 53 case bundles from three initiative areas county courts only no time for random sampling – (mostly) completed cases Bundles analysed for compliance and timing of events according to the stages of the PLO

Qual methods eight courts, (county and magistrates) visited, in three initiative areas interviews with judges, magistrates, legal advisers, and advocates focus groups with Cafcass and CAFCASS CYMRU guardians, listing officers and case progression officers observation of 18 hearings

Findings When implemented appropriately to the needs of the case, the PLO provides a clear structure for s.31 cases, and clear expectations on those involved, which was welcomed by all practitioners. Without exception all respondents welcomed the aims of focusing on more efficient use of court time, and avoiding delay for children.

Findings The application of the PLO by the judiciary, including magistrates and legal advisers, varied. Like any tool, the PLO’s efficacy is entirely dependent on the skill with which it is used. Skilful application includes understanding when the needs of the case require departure from the PLO timetable. Less skilful application would appear to lie in inflexible adherence to the timetable.

Findings The majority of cases in the quantitative sample required more than the four main hearings outlined in the PLO Few held the Case Management Conference or the Issues Resolution Hearing within the timescales specified by the PLO, However most cases in this sample (70%) were completed within 40 weeks. (Bear in mind that the focus on completed cases may have resulted in the sample being biased towards shorter cases.)

Findings Most interview respondents were not of the view that the case duration had been affected by the implementation of the PLO and felt that cases were still in the main falling outside the 40-week Public Service Agreement target.

Findings Qualitative exploration identified the following reasons for delays: local authority mismanaging disclosure and filing of key documentation; delays in disclosure of police and medical information; lack of a guardian report; delays in obtaining expert evidence; complex issues (such as drug and alcohol rehabilitation) taking longer to address and test in the community than the PLO allows for; late joining of parties.

Findings Ongoing dissatisfaction and disquiet regarding aspects of the pre-proceedings process: parents’ capacity to access and make use of specialist childcare lawyers; the capacity of this process to prevent cases coming to court; cases coming to courts where all parties are prepared and represented; the timing of the Letter before Proceedings; the practice of ‘frontloading’ work on cases causing delays to cases coming to court.

Findings In particular, this study noted serious concerns raised by respondents regarding the welfare, voice and human rights of the child during the pre-proceedings stage. A critical review of this process should include a re- appraisal of the question of independent welfare and legal representation of children at the point at which the Letter before Proceedings is issued. It should also consider the timing of appointment of the guardian.

Recommendations More comprehensive evaluation, across a range of settings, with random sampling Examine the impact of the PLO and statutory guidance on local authority practice A review of the pre-proceedings process

Reference An early process evaluation of the Public Law Outline in family courts Patricia Jessiman, Peter Keogh and Julia Brophy Ministry of Justice Research Series 10/09 July courts-process-evaluation.pdf