Identification and selection of cases

The trigger for considering taking a case to FDAC is any case where parental drug and/or alcohol misuse is leading to actual or likely significant harm for the children. At the time of the feasibility study there had been considerable

discussion among all stakeholders about whether there should be any criteria for excluding cases. It had been agreed that keeping exclusion criteria to a minimum would help ensure that the contribution of the FDAC pilot could be assessed on as wide a spectrum of cases as possible. It was agreed that the specialist team could consider excluding parents where:

• there is a history of severe physical or sexual abuse of the children, or • there is a history of severe domestic or other violence, where help has

been offered in the past and not accepted, or

• the parent is experiencing florid psychosis.

Interviews with the FDAC team, judges and guardians indicated that in some cases it is difficult to establish whether substance misuse is the key issue to be addressed or whether in fact the main problem is domestic violence or, for example, learning disability and such cases create particular challenges. This is an issue that will need further consideration as the pilot progresses, as will the possibility of the development of additional exclusion criteria.

Prior to the court starting it was thought that numbers of cases coming to FDAC might exceed the target of 60 cases. To deal with this possibility and with issues of team capacity at the beginning of the pilot, a system of random selection of cases by the court listing office was agreed. In the event the number of cases coming to court was lower than anticipated and random selection was never needed.

It has been difficult to establish the reasons for the lower than anticipated case numbers coming to FDAC in the first months of the project. The issue has been a subject of regular discussion at the Steering Group and the Cross Borough

Operational Group. One possibility was that suitable cases were somehow slipping through the net and not being brought to FDAC. Two reviews of non- FDAC care applications to the court from the pilot authorities, carried out in early

FDAC Interim Report – August 2009 75

and late 2008 came to the overall conclusion that cases were not slipping through the net to any significant degree.

A second possibility was that the projection of likely case numbers for FDAC, based on care proceedings brought in 2004-05, was out of date by 2008. The

Hidden Harm agenda had had an impact on the approach to parental substance misuse in three boroughs, leading to better co-ordination between adult and children’s services and earlier intervention and these changes may have reduced the need for care proceedings. It is beyond the remit of the researchers to follow up this point but it is unlikely to be the full explanation.

A third possibility was that the Public Law Outline (PLO)47, which came into force in April 2008, had reduced the number of applications for care orders. Nationally, there was a drop in applications for care proceedings between April-September 2008, when the monthly numbers were well below those for the same six-month period in each of the previous three years48. One explanation of this national trend is that applications were taking longer to process whilst local authorities took steps to ensure they had undertaken all possible preparations in line with PLO guidance. Another possibility is that cases were being diverted altogether through use of pre- proceedings processes in line with revised Children Act guidance49. An early process evaluation of the PLO did not look at whether the number of cases coming to court fell as a result of the introduction of the PLO. It did comment that there were concerns that the expectations in relation to pre- proceedings work were causing delays in bringing cases to court50.

Finally, the rise in the court fees paid by local authorities for making an

application for a care order has been viewed by many as a possible contributor to the low rates of care proceedings in 2008. Court fees are now being reviewed following recommendations in the Laming Progress Report51.

In the early months of the project complications arose when cases which had started as standard care proceedings were then identified as suitable for FDAC and transferred over after a number of hearings. This problem has been resolved with the new listing system – an FDAC case may now start in another court if an early hearing is needed but it will transfer into FDAC immediately afterwards, with

47

The Public Law Outline – Guide to Case Management in Public Law Proceedings. Practice Direction. April 2008.

48

Cafcass Care Demand Statistics: Figures derived from Cafcass national case management system. Note: A case can ‘involve multiple children and multiple application types’.

http://www.cafcass.gov.uk/PDF/0910%20Q1%20care%20demand%20update%202009%2007%2 016.pdf

49

DCSF (2008) The Children Act 1989 Guidance and Regulations – Volume 1 – Court Orders. London. TSO.

50

Jessiman P, Keogh P, and Brophy J (2009) An early process evaluation of the Public Law Outline in family courts. Ministry of Justice Research series 10/09.

51

Lord Laming (2009) The Protection of Children in England: A Progress Report; DCSF (2009) The Protection of Children in England: Action Plan (the Government response to Lord Laming).

FDAC Interim Report – August 2009 76

clear information conveyed to all parties, to the FDAC team and to the designated guardian.