chapter eight: courts speed and efficiency
This chapter sets out the changes the Government will make to the court system, including:
• making better use of the available expertise;
• improving expertise through training;
• improving case management;
• establishing the Children and Family Court Advisory and Support Service; and
• setting timescales and improving monitoring systems.
8.1 The courts play a vital role in dealing with adoption. They consider whether the plans for children in care and for adoption are in the best interests of the child and, if they are, approve them. They also hear from birth parents or other people with an interest in the case, and ensure that everyone is listened to and treated fairly before a final decision is made.
The current system
8.2 Since the first and best place for children to grow up is with their birth families, when it is safe for them to do so, the court process leading to adoption makes provision for children to return to their birth families at every stage. Figure 3 explains the court process now for both step-parent adoptions, and adoptions of looked after children.
8.3 Step-parent adoptions are where one of the adoptive parents is a birth parent of the child being adopted. This White Paper focuses on adoptions of looked after children, but each year the courts also deal with more than 1,600 step-parent and other adoptions. Proposals affecting the courts will therefore affect all children who are adopted.
8.4 At the moment, magistrates' courts, county courts and the High Court all deal with adoption proceedings, which can begin at any of these levels. Cases are generally transferred to the most appropriate level, so if complicated cases are started in one of the lower courts, they will usually be transferred up to a higher level, and simple cases which are started in a higher court will often be transferred down. The decision to transfer a case is made by the judge, magistrate or legal adviser hearing the case.
Figure 3 The court process now
8.5 When an application for adoption is made, the court proceedings involve a number of stages to ensure that the views of the birth parents are taken into account and that there has been a full assessment of what is in the best interests of the child. Figure 4 shows the stages involved.
Figure 4 Court process for adoption orders
8.6 The Lord Chancellor's Department is currently studying the causes of delay in children cases (see Box).
|
Examples of delay in children cases
• In one case, social workers applied to the magistrates' court for a care order. The magistrates' court did not commission reports or take any action to identify the key issues. Weeks later, the case was transferred to the county court. The district judge there effectively had to start from scratch.
• In one area, guardians ad litem had to arrange that the local social services department would warn them in advance about Children Act applications, because the court was so slow in doing so.
• One court welfare service waited up to ten weeks to be told about an order for a welfare report.
• In some cases, expert reports were requested too late, and the time taken to write them caused delays. Sometimes, they duplicated the council's own assessment a further waste of time and money.
|
8.7 The following have so far emerged as the improvements needed:
• more judges and magistrates trained in children and adoption work;
• better and more consistent case management to reduce drift and duplication;
• more focused expert reports from a greater range of experts;
• better communication and co-operation between all those involved in the family justice system.
Best use of expertise
8.8 Work will start early in 2001 on developing ways of increasing flexibility in the family justice system, while maintaining and improving upon the specialist expertise necessary to handle children and adoption cases effectively. The Government will:
• expand the number of judges able to deal with certain types of family work to reduce delay in the county courts. The current system of allocating work to judges is complex and inflexible. This can result in delay because the judge with the right expertise is not available; the Government will amend the allocation system in 2001 to address this;
• designate specialist adoption centres supported by well trained staff. Currently adoption work is carried out in a large number of courts around the country, some dealing with only a handful of cases each year. This makes it difficult for both judges and staff in those courts to retain expertise in this work. The Government will therefore concentrate the work in adoption centres so that specialist judges and staff handle the work. These centres will be modelled and tested in a pilot scheme beginning in summer 2001.
|
The Inner London and City Family Proceedings Court at Wells Street, London is a specialist court that only deals with family cases. District judges, lay magistrates and the legally qualified clerks who advise them, work closely together to ensure that cases are considered with minimum delay. Seven courtrooms are available, and work is transferred between courtrooms to ensure that the best use is made of courtroom time. The clerks hear direction appointments which deal with timetabling and case management issues. Full hearings are listed before district judges or lay magistrates. A legally qualified clerk is available every day to provide a quick response to enquiries or urgent applications. The filing of documents is regularly monitored to avoid case 'drift'. Court users are consulted about listing, and information and good practice are shared at regular court user meetings. The time spent waiting for the hearing on the day and the time taken for completion of cases are constantly under review. A working group has been set up at the court to recommend new ways of improving the service.
|
Case management and experts
8.9 Court proceedings leading to adoption can involve many different people, for example, the birth parents, the prospective adoptive parents, adoption agencies and child health professionals. If cases are not managed well by the court there is delay and distress for children.
8.10 To minimise delay it is important that judges, magistrates and their legal advisers identify potential problems at an early stage and set and enforce realistic timescales for each person's contribution. It is equally important that all of those involved provide the information requested by the court clearly, concisely and on time.
8.11 The Government wants to build on best practice already available to minimise delays. In particular it will:
• work with the President of the Family Division to provide interim guidance to the courts early in 2001, on case management and consistency of practice on issues such as access to court records by adopted adults;
• pilot options for improved case management in children cases at specialist centres, from 2001, in partnership with courts, lawyers and others with an interest. The Government aims to complete and evaluate the pilot by December 2002;
• thereafter, in 2003 if necessary, amend the Adoption Rules and Magistrates' Courts (Adoption) Rules 1984 to support the case management tested in the pilot.
8.12 These improvements will keep cases focused and will provide greater consistency of timescales and practice across the country. The Government knows from previous experience in other areas of family work that once the case management pilots are established, other courts are likely to adopt the best practice of the pilot scheme, enabling the benefits to be realised as quickly as possible. Following the pilot scheme, it will, if necessary, change the court rules to enforce best practice.
Inter-agency co-operation
8.13 The efforts of a large number of professions and agencies, including courts, councils and voluntary adoption agencies, contribute to dealing with children cases. All those involved in the court process must work together to manage children cases efficiently and effectively. The study of children cases has shown that some of the existing structures do not sufficiently support agencies to do this. For example, there is a network of local committees which monitor the operation of children's proceedings in their area, but there is no single national forum which could identify problems affecting several areas, share best practice, and encourage consistency of approach across the country.
8.14 The Government will therefore consult early in 2001 on better ways of encouraging and improving inter-agency working, communication and co-operation, and providing opportunities for the discussion of issues of local concern. The Government plans to implement the changes by the end of the year.
Timescales and better statistics
8.15 The courts would benefit from improved systems to:
• encourage the consistent recording of information such as the time taken in children's proceedings;
• support effective case management.
8.16 The Government has already announced plans to introduce new IT systems in the magistrates' courts to collect better data, but this will take time. In the meantime it will obtain sample information on the management of children and adoption proceedings at all levels of court. This will include identifying the key stages of the court process with a view to collecting information from 2001. This will enable timescales for children cases to be set in 2002.
8.17 The Government will amend the Adoption Rules and Magistrates' Courts (Adoption) Rules 1984 to allow the Office for National Statistics to collect more detailed adoption information, to help inform decisions about future changes.
Children and Family Court Advisory and Support Service (CAFCASS)
8.18 The new Children and Family Court Advisory and Support Service (CAFCASS) will come into existence in April 2001. This will bring together the 54 local Family Court Welfare Services, which represent children in divorces and separations where the parents cannot agree the arrangements for contact and residence, the 57 Guardian ad litem and Reporting Officer Services (GALRO), which represent children who are the subject of care or adoption proceedings, and represent parents where they are consenting to the adoption of their children, and the Children's Divisions of the Official Solicitor, which represent children in cases in the higher courts (see Figure 5). By bringing these services together in one body for England and Wales, CAFCASS will be more flexible, and will be better able to offer a more professional service, focused on the needs of the children.
Figure 5 CAFCASS
8.19 By April 2001, the Government will develop national standards for CAFCASS to ensure a consistent service across England and Wales. It will also set clear quality standards in contracts for all staff (employed and self-employed), and review performance against those standards.
8.20 The creation of CAFCASS also presents an opportunity to develop more specific professional training and development for its officers. Officers of CAFCASS should work effectively with council staff, and investigate the possibility of secondments, shadowing and mentoring arrangements with councils. They should also consider how they might provide such opportunities for staff from councils.
Judicial training
|
The Judicial Studies Board, a non-departmental public body, is responsible for training judges and for advising the Lord Chancellor on the training of lay magistrates and the effectiveness with which this training is delivered by the Magistrates' Court Committees. The Magistrates' Court Committees are responsible for the day-to-day management of the magistrates' courts. Figure 6 demonstrates the processes for judicial training.
|
8.21 All judges dealing with adoption and children cases receive relevant training on legislation, procedure and information about the work of the other key agencies involved. Judicial guidance is currently being updated and will be available in March 2001. Training packages will be produced by the Judicial Studies Board to support the new procedures for adoption arising from the work on case management and the new adoption legislation. This guidance and training will cover the important issue of post-adoption contact.
Figure 6 Judicial and magistrates' training
Funding of court costs and fees
Public legal services funding (formerly Legal Aid)
8.22 There have been difficulties concerning the funding of adoption and children cases. It has not always been clear whether the Legal Services Commission (formerly the Legal Aid Board) or the council should fund certain legal services in adoption proceedings. This can lead to delays where the Commission, in accordance with its Funding Code approved by Parliament, refuses funding on the grounds that the adoption is supported by, and can reasonably expect to receive funding from, the council (see Box).
|
The effect of the Access to Justice Act 1999
On 1st April 2000, the Access to Justice Act 1999 came into force, effectively replacing the Legal Aid Board with the Legal Services Commission. The Community Legal Service Fund replaced Legal Aid funding for all civil and family cases from this date and a new flexible funding assessment, the Funding Code, replaced the old 'means and merits' test. Applications for funding in adoption proceedings are considered under the specified criteria set out in the Funding Code. Under the Code an application for funding may be refused if alternative funding is available to the client or if there are other persons or bodies, including those who might benefit from the proceedings, who can reasonably be expected to bring or fund the case.
|
8.23 Some councils have been advised by their auditors that they cannot meet court costs without an application for public funding from the Legal Services Commission.
8.24 This confusion is not acceptable, as it causes delay, and inconsistency of access to legal services. The Government will therefore work with a national representative group of council lawyers, the Child Care Law Joint Liaison Group and the Association of Directors of Social Services to resolve the delays associated with funding adoption cases and to improve consistency of practice.
Court fees
8.25 Generally, Government policy is for the courts to recover the cost of carrying out their work by charging fees. All courts provide for fee exemption when an applicant is in receipt of certain benefits. Additionally, the county and High courts may remit the fee when payment would cause severe financial hardship.
8.26 In the future, councils will be required to pay the court fees when looked after children are adopted.
Improving the adoption process
Consent to adoption
8.27 The current form which birth parents sign to confirm that they agree to their child's adoption states that they have agreed to the adoption freely and unconditionally. The decision to agree to adoption is often a very difficult one and this wording may not reflect how birth parents feel about it.
8.28 The Government will therefore amend the consent to adoption form in 2001 so that it better reflects the reality that birth parents have agreed to the adoption on the basis that it is in the best interests of the child. This should mean that more birth parents feel able to sign the consent form, thus reducing the number of contested adoptions. This will reduce delays in court proceedings and make them easier and less distressing for children.
Schedule 2 reports
8.29 Schedule 2 reports, completed by councils or adoption agencies, set out details about the child to be adopted, the birth parents and the adoptive parents and recommend whether adoption will be in the best interests of the child.
8.30 The court rules state that councils should file their report to the court within six weeks. At present, councils are not achieving this. The Government will issue guidance to councils in 2001 on how to improve their performance, and achieve the six week deadline, for example, through better use of staff time and skill mix. In addition, following the case management pilots, the Government will amend the Adoption Rules and Magistrates' Courts (Adoption) Rules 1984 to give courts the ability to fix and monitor timetables in adoption cases so that cases are dealt with at the appropriate speed.
Lightening the workload
8.31 As a possible means of reducing the workload of the courts (and therefore allowing cases to be considered sooner), the PIU report asked whether court proceedings were needed for step-parent adoptions and 'straightforward' adoptions.
8.32 However, the responses to the report suggested that it is extremely difficult to identify 'straightforward' cases. Even in step-parent adoptions, birth parents may not want their child to be adopted, and in many cases the child will not be old enough to express their own views about what is happening. It was felt that court proceedings are appropriate in the majority of cases because of the significance of adoption for the child's future and in terminating the parental rights of the birth parents. The Government is therefore not intending to pursue this recommendation at this stage.
8.33 However, in 2001, the Government will do further work on the prospects of identifying 'straightforward' adoptions, with a view to speeding up these cases within the court system.
| 
