Ensuring the child’s views are taken into account
There is a requirement under the UN Convention on the Rights of the Child (Article 12), in addition to those requirements in the Children Act 1989, to take into account the child’s own view. This must incorporate a full understanding of their experience as well as their views when these can be expressed, and even with the youngest child, their experience can be understood through engagement and observation as appropriate. The removal of a child from their family is so serious a step that it demands the best possible understanding of the child’s needs and experience.
The Office of the Children’s Commissioner’s submission to the APPG Child Protection Inquiry on the implementation of the Family Justice Review states at 2.2:
The IRO has a key role in enabling looked after children and young people to have a voice in the planning for their care by the local authority and there are indications that the IRO has become the most stable professional in the lives of many looked after children.
IROs are highly experienced social workers and managers. The IRO role has been strengthened through Guidance which broadens the IRO’s responsibilities towards children in care and reinforces their responsibility to ensure that concerns about the child’s plan or their care are addressed and resolved.
The appointed Guardian, in fulfilling their reporting role to the court, has the responsibility to ensure that the child’s wishes and feelings are taken into consideration in the proposals and decisions as to what is in their best interests. Increase in Guardian’s workloads and the consequent reduction of time spent on each case – and in direct contact with each child, is a concern to many in the field.
There is a need for close liaison between the IRO and the Guardian in order that both fully understand the child’s perspective in public law cases and are able to assess and inform decisions about the child’s best interests.
The Local Authority and the Guardian must take the views of the IRO on the quality of planning into account in formulating the final care plan to be put before the Court.
Role of the IRO in Care Proceedings
In April 2011 the DfE introduced guidance for IROs arising from the Children and Young Persons Act 2008, the IRO Handbook. Chapter 8 of the guidance deals with IROs working with Children whose cases are in family proceedings.
The Handbook requires much closer involvement of IROs in family proceedings, close collaboration with the Children’s Guardian, and more communication between the IRO and the Court. The guidance also sets out the necessary arrangements for when the proceedings are finished.
The IRO Handbook (2010) states at 2.10:
The primary task of the IRO is to ensure that the care plan for the child fully reflects the child’s current needs and that the actions set out in the plan are consistent with the local authority’s legal responsibilities towards the child.
Scrutiny of care plans
As a result of the Family Justice Review the courts now take a lighter touch in the scrutiny of care plans, focussing not on the detail but on the eventual permanent care placement for the child. The effective scrutiny of plans therefore depends on the quality of oversight of assessments and plans during proceedings by the child’s Guardian and the Independent Reviewing Officer (IRO). The outcome for the child will also depend on the follow up and implementation of the plan after the proceedings on the handover of the responsibility for oversight from the Guardian to the IRO and on the effectiveness of measures to take the case back to court if the plan has not been fulfilled.
The Local Authority must take the views of the IRO on the quality of planning into account in formulating the final care plan to be put to the Court.
The Child’s Care Plan must be maintained by the Local Authority and kept under review at the statutory intervals and whenever significant changes are proposed to the plan throughout proceedings. Both the Children’s Guardian and the IRO should be properly informed about the Local Authority’s plans for the child so they are able to scrutinise these plans to make sure that they are based on good quality assessment so that the plan demonstrates how the child’s needs will be met, with the Child being provided with the opportunity to be meaningfully involved in planning for their Care.
The Local Authority should provide the parties and the Children’s Guardian with the name and contact details of the IRO together with the dates of any statutory reviews which have been arranged.
There should be a clear protocol for the communication between the IRO with the Court appointed Guardian and the Local Authority legal services. It is important that every Local Authority has an agreed protocol for forwarding all court directions to the allocated IRO in a timely fashion and that in the absence of the Guardian at the review there is process for forwarding the Chair’s report to the Guardian.
Effective implementation of the joint protocol should ensure that the allocated IRO and Guardian establish contact upon appointment and that the IRO’s views of the Local Authority care plan are known by the Guardian including the IRO accessing the local dispute resolution process.
IRO caseloads: For the IRO to be enabled to fulfil their increased role in having oversight of the child’s case, they need to have a restricted caseload – allowing sufficient time to fulfil this role. They must be enabled to engage with and understand each child. For an increased scrutiny role in cases before the court, the IRO needs to read all the evidence and assessment material presented to court – in order to make a judgement as to the appropriateness of the plan.
Some key documents and publications:
Cafcass and Independent Reviewing Officer Good Practice Protocol for Public Law Work
The Office of the Children’s Commissioner’s submission to the APPG Child Protection Inquiry on the implementation of the Family Justice Review
The Children Act 1989 guidance and regulations – Volume 2: care planning, placement and case review
Number of care applications hits record annual level
Agreement about how local authorities and Cafcass can work effectively in a set of care proceedings and pre-court proceedings in the English Family Courts
Behind Closed Doors: Diluting the Guardian’s Independence, Circumventing the Role of the Court