Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
doi:10.1093/bjsw/bcs168
Advance Access publication November 1, 2012
Ms Kim Holt is a Senior Lecturer, Barrister and Head of the Division of Social Work and Social
Care, University of Bradford, UK. Dr Nancy Kelly is a Senior Lecturer in the Division
of Psychology, University of Bradford, UK.
Abstract
The Public Law Outline (PLO) introduced in England and Wales in April 2008 appeared to
hold out the promise of a fairer process for parents within pre-proceedings decision-
making processes that determine whether or not the local authority will make an appli-
cation to court. Whilst the rhetoric of the PLO to provide consensual solutions within ad-
ministrative rather than judicial decision-making processes may be laudable, there are
tensions and dilemmas in ensuring the rights of parents and children are protected
when important decisions are being made without the oversight of the court. Despite
the rhetoric of keeping children and families at the heart, there appears no relief
from the procedural and managerial processes set within a context of public sector
cuts affecting all professionals tasked with protecting children. Achieving justice for chil-
dren and families to ensure their rights are protected within a protocol that necessitates
increased resources will be a challenge.
Keywords: Child protection, child welfare, decision making, diversion, human rights
Introduction
Within the UK, there have recently been a number of important policy and
legislative changes with regard to child-care social work. The intention of
these changes is to optimise outcomes for children and families by reducing
delay in decision making at all stages of the process both pre-proceedings
and when the court is managing a case. The aims of the Public Law
Outline (2008) and the Family Justice Review (Ministry of Justice, 2011)
are to achieve participatory and timely decision making whilst ensuring
costs and resources are managed effectively. This paper is concerned with
the implications of the changes with regard to child-care practice before
court proceedings, namely with practice that occurs within administrative
rather than judicial decision-making procedures.
The paper focuses on decision making in the context of a pre-proceedings
protocol, and provides a review of evidence to date of effective administra-
tive decision making. Whilst the aspirations of the policy and legislative
mandates to achieving consensual solutions in safeguarding children may
be laudable, this paper considers the rights of parents and children in line
with the government’s commitment to keeping them ‘at the heart’ (Ministry
of Justice, 2012). Recognition is given to the significance of the European
Convention on Human Rights (ECHR) (1950) and the Human Rights
Act (HRA) (1988) in ensuring justice for children and families.
The paper highlights tensions and dilemmas and possible unintended
consequences of the enactment of new legislation for child protection prac-
tice in a context of significant public-sector funding cuts in the UK.
The 1989 Children Act repealed previous child-care law and the act
attempted to:
. . . strike a balance between the rights of children to express their views on
decisions made about their lives, the rights of parents to exercise their re-
sponsibilities towards the child and the duty of the state to intervene
where the child’s welfare requires it (Department of Health, 1991, p. 1).
The act stated in section 17(1) that it was the duty of every local authority
(i) to safeguard and promote the welfare of children within their area who
are in need and (ii) so far is consistent with that duty to promote the level of
upbringing of children by their families by providing a range of services ap-
propriate to their needs. Guided by two cardinal principles of the act, the
welfare of the child is to be considered paramount (section 1(1)) and no
order should be made by the court unless the making of an order is consid-
ered to be in the child’s best interests (section 1(5)). The law recognised
that, whilst the welfare of the child was paramount, this had to be assessed
in partnership with parents and their children, and it encouraged the in-
volvement of the family in decision-making processes. Family support prac-
tices were given statutory support and, wherever possible, local authorities
were to pursue consensual solutions with families.
Subsequent revisions to the Act continue to place emphasis on the two
cardinal principles and two recent policy and legislative changes give
further impetus to engaging and supporting families with the aim of divert-
ing cases away from the courts wherever possible.
Care Matters: Time for Change (Department for Education and Skills,
2007) set out the government’s plans to improve outcomes for looked
after children and culminated in the 2008 Children and Young Persons
Act. The legislation contained a mandate towards further engaging and sup-
porting families before cases went into proceedings. These included: a re-
emphasis on the preference for placements for children with family and
friends over professional care whilst abiding by the principle that any place-
ment must be consistent with a child’s welfare; an extension of the rights of
relatives who are entitled to apply for a residence order or special guardian-
ship order without leave of the court to those with whom the child has lived
for a continuous period of one year; an amendment to the appointment and
addition to the role of Independent Reviewing Officers; and the creation of
Family Group Conferences to support family and friends at an early stage
of concerns.
The Public Law Outline (PLO) (Ministry of Justice, 2008) replaced the
Protocol for Judicial Case Management (2003) in England and Wales and
required a reordering of the way care proceedings are instigated, structured
and conducted. The PLO involves two stages: ‘pre-proceedings’ and ‘post
instigation of proceedings’; in the latter, the court process is reduced
from six to four stages, each with explicit timescales attached to procedures,
and the local authority is required to provide a detailed core assessment and
care plan at the Issuing of Proceedings and First Appointment Hearing. In
the pre-proceedings stage, the aim is to maximise the possibility of resolving
cases without proceedings and makes mandatory certain steps that are to be
taken prior to proceedings being issued. These require the local authority to
carry out assessment work prior to the instigation of proceedings, identify
and assess any possible alternative placements with relatives and friends
and explore all possible alternatives to instigating proceedings. Should
the local authority consider that proceedings are necessary (and not of
such a nature that the welfare of the child requires immediate court protec-
tion), they must convene a meeting between the social worker and local au-
thority legal advisor (a legal planning meeting), and a Letter Before
Proceedings must be sent to parents. This letter must summarise concerns,
state actions required to remedy those concerns, provide information on
what the local authority has done to safeguard the children to date and
state what outcome would be likely if the concerns are not addressed.
The Letter Before Proceedings invites parents to a pre-proceedings
meeting to be convened with the local authority legal advisor and social
worker/s and must advise parents on how to obtain legal advice and repre-
sentation at that meeting. Whilst these procedures may have been in place
in local authorities prior to the PLO, the mandatory nature of the pre-
proceedings stage means that parents now have a more formal statement
of their position and clear information that they have the right to legal rep-
resentation at the pre-proceedings meeting.
These changes place further emphasis and demands on local authorities
to seek and evidence mediated alternatives to local authority care and con-
tinue to be underscored by the ‘no order’ principle of the 1989 Children Act
(Welbourne, 2008; Broadhurst and Holt, 2010).
The Convention for the Protection of Human Rights and Fundamental
Freedoms (commonly referred to as the ECHR) was adopted under the
auspices of the Council of Europe in 1950 and came into force in September
1953. The human rights that are enshrined within the ECHR are enforce-
able in the UK’s domestic courts by virtue of the HRA 1998. The discussion
here focuses on Article 8 (ECHR) in relation to the rights of parents and
children to be involved in decision-making processes, and makes later ref-
erence to the relevance of Article 6 (ECHR) with respect to legal advice
and representation. Article 8 constitutes a ‘qualified right’; this means
that state interference with the rights set out under Article 8 is permissible
in certain specific situations. An aspect of Article 6 protects the right of
everyone to ‘a fair and public hearing’ in the determination of their civil
rights and obligations (P, C and S v. United Kingdom, [2002] 2 FLR 631).
(Case citation is the system used to report past court cases. Although case
citations are formatted differently between jurisdictions, they provide the
key facts which include the name of the case, the year the case was
decided and the source, such as Family Law Reports (FLR), volume and
page number).
Article 8(1) provides that ‘everyone has the right to respect for his private
and family life, his home and his correspondence’. Article 8(2) prohibits the
state from interfering with this right unless such interference is justified on
one of the grounds set out in Article 8(2). Interference with a qualified right
by the state must be in accordance with the law and be proportionate to
certain legitimate aims. These include:
The Court accepts the child’s welfare can justify actions that might otherwise
breach the parents’ rights. A ‘fair balance’ has to be struck between the inter-
ests of parent and child, and a parent is not entitled to have action taken
which would jeopardise the welfare of the child (Johansen v. Norway,
(1997) 23 EHRR 33, para. 78).
Arguably, the 1989 Children Act was subject to significant ‘human rights
proofing’ at its inception (Masson, 2006). The principles of the Children Act
remain embedded in new legislation and the introduction of the PLO, with
its mandate on pre-proceedings decision making, reflects significant com-
patibility in principle between human rights and child protection legislation.
There has been scrutiny of judicial decision making where evidence sug-
gests the rights of parents and children have breached Articles 8 and 6 of
the ECHR. For example, there are two recent cases in which the Court of
Appeal held that the circumstances in which the children had been, or
were to be, removed from the mother with judicial endorsement had been en-
tirely unacceptable (Re EH v. London Borough of Greenwich, [2010]
EWCA Civ. 344; Re S (Authorising Children’s Immediate Removal), [2010]
EWCA Civ. 421). Similarly, there is evidence from child death inquiry
reports and serious case reviews that highlight the child’s right to participate
meaningfully in the decision-making process and the right to be heard is not
afforded appropriate significance, thus potential breaches of Article 6
(Brandon et al., 2009).
Although the tendency is primarily to think of the negative obligation on
the state not to interfere with family life, this has to be balanced with the
requirement of Article 8(1) that imposes a positive obligation on the state
to respect both private and family life. The positive obligations afforded
by Article 8 may be restricted if the complaint is that the state has simply
failed to act altogether. However, when the state has decided to intervene
in family life, it is considerably more difficult to justify inaction. Where, for
example, the state in the guise of the local authority has intervened in the
child’s family life by commencing care proceedings and taking a child
into public care, the judicially enforced burdens upon the local authority
under Article 8 can be onerous (Munby, 2009, p. 4). Furthermore, the
family courts have consistently avoided any examination of competing
rights and largely ignore the principles of interpretation of the Convention
rights developed by the European Court. Thus, in Payne v. Payne ([2001]
EWCA Civ. 166, [2001] 1 FLR), the then president Butler Sloss stated:
The HRA requires some revision of the judicial approach to safeguard the
parent’s rights under the ECHR, it required no re-evaluation of the judge’s
primary task which was to evaluate and uphold the welfare of the child as
the paramount consideration despite its inevitable conflict with the adult
rights.
tests now revealed evidence of brittle bone disease. It was then recom-
mended that the child be returned to the family home, and this occurred
some six weeks after the recommendation. The court considered two
aspects of the local authorities’ decisions and actions: the initial decision
to take action based on perceived risk to the child and the handling of
the case thereafter. The reasons justifying the initial decision to place the
child on an Interim Care Order were considered to be ‘relevent and suffi-
cient’, so, in this decision, adherence to the substantive aspect of
Article 8 was appropriate. However, a number of actions thereafter were
considered to be failings that ‘both extended and exacerbated the interfer-
ence with the applicants’ right to respect for their family life’. These find-
ings were identified as: the relocation of the family far from their home;
the failure to ensure the correct risk assessment was done in the first
place; dismissing without proper consideration the possibility of foster-care
with a relative; and the unreasonable length of time it took for the local
authority to return the child to the family after it was recommended. The
court held that the actions of the intervention were not necessary and
hence there had been a breach of Article 8.
In the second example, Re g. Care: Challenge to the Local Authority’s
Decision ([2003] EWCH 551; [2003] 2 FLR 42), the children were on a
care order yet the parents complained that the local authority, operating
within administrative decision-making processes after the court order, sub-
stituted an entirely new care plan involving removal of the children without
involving them in the process. Munby J. made the point that, even when
children were subject to a care order, that should not be changed without
due consultation with the parents, as this would be in breach of the proced-
ural aspect of Article 8. As Munby J. outlined:
The fact that a local authority has parental responsibility for children pur-
suant to s 33(3)(a) of the Children Act 1989 does not entitle it to take deci-
sions about children without reference to, or over the heads of the children’s
parents. A local authority, even if clothed with the authority of a care order,
is not entitled to make significant changes in the care plan, or to change the
arrangements under which the children are living, let alone to remove the
children from home if they are living with their parents, without properly
involving the parents in the decision-making process and without giving
the parents a proper opportunity to make their case before a decision is
made. After all, the fact that the local authority also has parental responsi-
bility does not deprive the parents of their parental responsibility.
were paid at the normal rate. Munby J. found the policy contrary to
Article 8 and the impact of the judgement was that payments to kinship
carers must be paid on the same basis as other carers, irrespective of the
length of duration of the arrangements.
In these examples, and there are many others in which legal challenges have
been made, there is evidence that administrative decision making by in-
dividuals and local authorities may not prioritise the rights of children and
families under Article 8, and the resultant outcomes for children include pro-
longed case trajectories and less-than-optimal living arrangements.
Importantly, responding to the challenge of ensuring the rights of children
and families are maintained when the local authority has intervened in
family life is the role and function of the Independent Reviewing Officer
(IRO). The IRO was introduced under section 118 of the 2002 Adoption
and Children Act. The role of the IRO is to quality-assure the care-planning
process for all looked after children and there is an overriding duty to
monitor the local authority’s performance in a child’s case, participate in
case reviews and to ensure the child’s wishes and feelings are given due con-
sideration. This was mandated by the Care Planning, Placement and Case
Review (England) Regulations 2010. In performing these duties, specific
responsibilities include: promoting the voice of the child; ensuring that
plans for looked after children are based on detailed and informed assess-
ments that are current, effective and provide a real response to children’s
needs; identifying any gaps in the assessment process or service provision;
ensuring children understand how advocates may help them and their en-
titlement to advocacy; offering a safeguard to prevent ‘drift’ in care planning
for a looked after child; and monitoring the activity of the local authority as
a corporate parent. Notwithstanding the importance of the role of the
IRO for a child who is looked after by the local authority, there is no
legal remit for the role of the IRO to be extended to the pre-proceedings
meeting where children may not be accommodated by the local authority
but where important decisions are being made about where a child should
live or if an application under section 31 should be made by the local author-
ity. In some local authorities, the IRO will be involved where children have
been the subject of a child protection conference and/or subject to a child
protection plan. In many local authorities, the child protection process
and PLO process may run concurrently but not necessarily together, so a
child may have a child protection plan and a PLO plan which is shared
(where applicable) at the next child protection conference.
Clearly, the role of the IRO appears peripheral in many PLO cases and
there is an argument for the need to make this role more central in the PLO
process. However, there are tensions with this proposal in terms of resour-
cing and independence. In many local authorities, the rise in the number of
care applications has resulted in an unprecedented number of accommo-
dated children, which has increased the volume of work for an already
stretched service. Nationally, in the year ending 31 March 2011, a total of
When judicial decision making is taking place, the parents and children
may be represented by a professional advocate, usually a barrister/solicitor
specialising in family law, and the rights and welfare of children are also
separately represented and advocated for by the Family Court Advisor.
For the first time in administrative decision making, the introduction of
the PLO required the local authority to inform the parents of their rights
to be represented at the pre-proceedings stage and the Letter Before Pro-
ceedings makes a statement to this effect; it can also inform parents of the
possibility of obtaining legal aid at this point. So the PLO would appear to
be compliant with Article 6, and explicitly affords an opportunity for the
parents to draw upon legal advice, potentially redressing an imbalance at
this stage.
However, it seems that there are a number of issues. First, as outlined in
the introduction, it is argued that independent representation of children is
essential if the rights and needs of children and parents are not to be con-
flated; this is not required by the PLO. Second, is the effect of Article 6 a
duty that the decision maker—the local authority—permit representation
for parents and children or are there circumstances in which the effect
means that the local authority has a duty to ensure representation for
parents and children? It is probably too early to assert unequivocally that
there is a duty to ensure representation, and the resource implications of
such a requirement would clearly incur significant cost in terms of
finance and time. Yet the opportunity for parents to draw upon legal ex-
pertise would appear to hold out the possibility of a ‘fairer’ process.
There is a significant body of literature outlining the difficulties of en-
gaging with families in ways that fully afford their right to be heard in the
decision-making process. Reasons include the difficulties of engaging
with families with complex needs and varying levels of co-operation, well-
documented difficulties with multi-agency working, the increased bureau-
cratisation of child-care practice and decrease in face-to-face contact with
families, and the constraints of economic and cultural resources (Brophy,
2006; Harlow and Shardlow, 2006; Masson et al., 2008; Broadhurst et al.,
2009; Shaw et al., 2009; Broadhurst and Holt, 2010). It seems pertinent to
suggest that engaging with families in pre-proceedings work is more
pivotal than ever in terms of the likely trajectory of child-care cases.
Jessiman et al. (2009) explored the process of the PLO where cases had
gone into court proceedings. In Jessiman’s study, they noted that the
PLO, amongst other things, had not appeared to enhance parental capacity
to benefit from legal advice at the pre-proceedings stage. Families had in-
evitably been involved with local authorities for extended time periods,
and Jessiman suggested two kinds of reasons for the relative ineffectiveness
of the opportunity for pre-proceedings legal advice. First, an issue concern-
ing the families themselves; here, reasons included families own vulnerabil-
ities or limited capacity to understand the Letter Before Proceedings and,
importantly, a perception by some families that investment by the local
Conclusion
Legislators and policy makers have a desire to ensure the PLO is effective,
as the Family Justice Review’s recommendation of achieving case reso-
lution in twenty-six weeks is dependent upon an effective pre-proceedings
protocol that diverts cases away from court or ensures that, when proceed-
ings are issued, there is agreement on areas of dispute and a narrowing of
issues before the court to avoid protracted proceedings for children and
families. The aspirations of the PLO to engage with parents to achieve con-
sensual solutions are desirable and consistent with the principles of good
social work practice, natural justice and human rights. However, frontload-
ing child-care work in this way is not without difficulty. There is evidence
that administrative decision making may not take due account of the
rights of parents and children under Article 8 of the ECHR, including
both the substantive and procedural aspects of this legislation. In particular,
the procedural aspect of Article 8 seems to be more open to interpretation
and discretion, and the extent to which local authorities are aware of, or
operate, decision making commensurate with this aspect can be challenged.
It is important therefore to embed an understanding amongst social work
practitioners and managers of the centrality of the positive obligations
afforded by Article 8, and for them to be confident and explicit in assess-
ments and documentation of how this has been achieved. In respect of
Article 6 of the ECHR, there is evidence that administrative decision
making may not pay due regard to the rights of parents and children
to be consulted and participate in decisions that affect their lives. Whilst
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