Discussion about the challenges currently facing families involved in the child welfare and family justice systems, and what changes in policy and practice might help them
Emma Sherrington, Partner at specialist family law firm Goodman Ray solicitors, and Jessica Johnston, a Legal Adviser at Family Rights Group, ask how we as a legal community can best support the parents and families we advise. The child welfare system has been described in recent years as ‘in crisis’. Subsequent sector-wide reviews and new government strategy focus on what improvements need to be made across the board – but what can we as the lawyers advising these families do now, on the ground, to improve their experience when children’s services become involved?
Family Rights Group was founded in 1974, in response to the injustices experienced by many families involved with children’s services at that time, and the unnecessary separation of children from their families. The charity promotes policies and practices that keep children safe within their family and strengthen the family and community networks of those children who cannot live at home. Next year, Family Rights Group will celebrate its 50th year of championing the rights of parents and the wider family network. It feels a timely moment to reflect on the challenges of recent years, and ask what more can we as a legal profession do. Both Goodman Ray and Family Rights Group have at their core the understanding that, where safe, children are best raised within their family. When it comes to decision-making about a child’s upbringing, the law provides that the child’s welfare is the court’s paramount consideration. This is of course the right approach, but we must also keep in mind that working in partnership with families is key here. Against the backdrop of an increasingly pressurised system and vastly reduced legal aid provision, we know that this is not happening consistently. So we ask what can we, as lawyers, do to better promote that essential relationship-based practice? We are agreed that the first step is access to specialist legal advice. This is essential in ensuring that parents and families are informed, and in a position to lead when it comes to decision-making for their children.
Emma: Tell us about Family Rights Group’s work, and your view on the current system within which we are all working:
Jessica: Family Rights Group works to ensure that families involved with the child welfare and family justice systems are treated fairly, have their rights respected and are able to make informed decisions. We do this through our free specialist Advice and Advocacy Service for parents, grandparents, relatives, friends and kinship carers who are involved with children’s services in England or need their help. We support families to understand the law and child welfare processes when social workers or courts are making decisions about their children. Our service is unique, combining both legal expertise and social welfare knowledge, and is staffed by qualified lawyers, social workers and family rights advocates. We provide a blended service with online advice resources accessed by 700,000 people every year, a telephone advice line, webchat, advice forums and an email enquiry form. We undertake research, and lobby for much needed legislative and policy change. In everything we do, we strive to promote families’ voices so children and families with experience of the child welfare and family justice systems help shape it, at both a local and national level.
As you will see in your practice, Emma, and as sector-wide reviews have confirmed: the child welfare system is in overstretched and overwhelmed. The family justice system is under similarly significant strain, with enormous court backlogs. We cannot underestimate the impact that this has on families. They are already going through an incredibly stressful time, which is made more difficult by delays and a lack of resource to for services that might help. The cumulative effect of budget cuts to local authorities mean that families are just not getting the early, focused support that they, and their children, need.
From facilitating the Care Crisis Review in 2018, to our input to influence the 2022 Independent Review of Children’s Social Care, and subsequent government strategy for children’s social care, we are clear that early, effective partnership working with children and families is crucial. The principle of partnership between the State and families, in the interests of their children, is a key underlying principle of the Children Act 1989. The importance of working in this way is specifically acknowledged in statutory guidance, which makes clear that the child-centred approach that must be taken to safeguarding means ‘keeping the child in focus when making decisions about their lives and working in partnership with them and their families’. But without ready access to specialist legal advice, parents and families are simply not in a position to truly understand their rights and options when social workers become involved. Advice is a core element of working in partnership, and the fact that access to advice is so limited – particularly at the early stages of work with a family – means partnership working is increasingly difficult to achieve.
Emma: So what is your particular focus this year, and as you look into 2024?
Jessica: A key point at which we want to see real system change, to avert more children from going into the care system, is pre proceedings – both the formal pre-proceedings process but also earlier. We are currently working to develop an approach that will promote, support the implementation of, and embed key policy and practice messages regarding pre-proceedings work¹. This includes messages from the Care Crisis Review, as well as the President of the Family Division’s Public Law Working Group, and from voluntary sector and academic research. The challenge will be how to implement those messages broadly across the sector, and create true change, to improve the system that families are facing. A key part of this will be working with our colleagues from across the legal sector – from those who, like you do in your work, advise and represent parents, children and kinship carers, to those working within local authority legal teams and Cafcass. As with all of our work, we will also work closely with parents and kinship carers with experience of the child welfare and family justice systems to develop this approach.
Emma: What is the one thing that you would change about our current family law system?
Jessica: The effects of the 2013 cuts to legal aid continue to be felt harshly by families, and across the legal sector, ten years on. There have been some recent improvements. For example, prospective special guardians can now access means-tested legal aid to support them in making an application to secure a child’s long-term home with them. And parents can more easily access legal aid to challenge the making of placement and adoption orders, or to understand the likelihood of successfully changing these applications. But these changes do not go far enough – there are still significant points within family justice where parents and relatives cannot access legal advice. This is either because the matters continue to be out of scope of legal aid, or practitioners simply cannot provide certain services, such as legal help advice, as doing so would mean working at a loss. A primary focus for our legal and policy teams is around legal aid reform.
Emma: Where specifically do you want to see reform within our family legal aid system?
Jessica: A key area of interest is in relation to legal aid for parents when their children are subject to applications by the local authority to deprive them of their liberty. At present, only 19% of respondents to secure accommodation orders are legally represented. We know that children are being placed many miles from home, and in potentially unsuitable accommodation. Their parents must be able to play a central role in ensuring that safe and appropriate plans for their children are being drawn up. This simply is not possible if they are not able to access legal advice to understand what those plans mean – they need advice from lawyers such as yourself about the implications of the plans being made for their children. We would call on our legal colleagues to consider the specific proposals we have made for reform in this note, and amplify the need for those changes to be properly considered by government.
Emma: And do you think that there is more that can be done for family members and friends who are stepping in to provide a home for a child in their family? They can now get legal aid to make an application for a special guardianship order, but what about those early stages, where the relative might not actually know whether this is something that they want to do?
Jessica: Absolutely. Those recent changes are really positive for some prospective special guardians, those who are financially eligible for legal aid, and know that a special guardianship order is the right option for them, and for the child. But overall, the recent reforms do not go far enough to improving access to justice for kinship carers.
Kinship carers do an extraordinary task, often stepping in to look after a young relative in an urgent and emergency situation. Yet in many cases they do so without being properly supported to understand the practical and financial implications of what might become a long-term arrangement. The current legal help system is not fit for purpose. And what this means on the ground, is that many kinship carers just do not get access to early-stage advice. You will know from the work that you do in advising family members and friends, that the most they are often able to access in terms of early legal advice, is the offer of an hour or two of your time funded by children’s services (and this is only if children’s services have positively assessed the carer). That is simply not enough time to do justice to the complexity of these situations. At Family Rights Group, we provide detailed advice to those looking to take on the care of a child in their family every day, but sometimes they need the ongoing advice and assistance from a solicitor – for example to correspond with children’s services and the child’s parents, and consider applications that can be made to the court. Our funding constraints do not allow us to do this.
There needs to be a clearer and more accessible route to kinship carers accessing early-stage legal advice at the point they are being assessed. They need to understand the assessment process, and the implications of certain legal orders and arrangements that the child could be made subject to. Further legal aid reform is crucial for kinship carers, especially for early-stage advice – in terms not only of scope and structure, but also levels of remuneration, to ensure solicitors can actually afford to do this work. We are working with colleagues from across the sector on specific reform proposals to improve the situation for prospective kinship carers. We would always welcome discussions with legal colleagues about particular areas of difficulty, and to explore what specific changes may be of most impact for those families you work with.
It is also essential that specialist voluntary sector services, such as our advice service, continue to be properly funded and supported by government. We advise on all aspects of the child welfare and family justice systems – from how families can access better support through early help, through to how to challenge the making of an adoption order and in relation to post-adoption contact. Our advisers are lawyers, social workers or those with similar expertise, and the advice they provide is detailed and specific. These services, together with a properly functioning legal aid regime, are in our view the basics when it comes to access to justice for parents and families, when social workers become involved.
Emma: The challenge is that we are still all working within this system which is increasingly pressurised, and without the much-needed changes to legal aid in place – in your view, is there anything already easily accessible by families that could improve their experience of the system?
Jessica: One of the primary messages from the Care Crisis Review was that the environment of our child welfare system is increasingly risk averse, and that this culture affects decision making throughout the system. Families feel ‘done to’ rather than ‘worked with’, and this feeling of not being listened to has a lasting effect on their ability to trust and work with those practitioners.
A key aspect of Family Rights Group’s work that I focus on is around better education within our legal and social work communities about use of family group conferences. A family group conference is a planning process, resulting in a meeting led by the family and arranged by an independent person. The process ensures that families are at the centre of decision-making. This is absolutely key when we are trying to ensure that practitioners are doing all they can to properly work in partnership with a family. Statutory guidance is clear that local authorities should consider referring a family to a family group conference service if they believe there is a possibility the child may not be able to remain with their parents, but this is not happening consistently across the country. A 2019 study of care proceedings reported only 39% of cases having had a family group conference before care proceedings commenced. This is particularly concerning when we then look to more recent research, undertaken by Foundations, which in June 2023 published an evaluation looking into the impact of family group conferences, when held pre-proceedings. That research demonstrated that were family group conferences to be rolled out nationally at the formal pre-proceedings stage, more than 2000 fewer children would go into the care system in England each year. Within the context of local authorities facing significant financial pressures, it is also important to note that the study found that providing all families with a family group conference before care proceedings are issued could save the public purse over £150m a year.
We have recently published a response to the government consultation on the proposed 2023 draft of Working Together, pushing for clearer direction within that key piece of statutory guidance about how local authorities should be using family group conferences. Families should be offered a referral to a family group conference at whatever stage of involvement children’s services have. They should be given information about the benefits of the approach, and supported to know that they can request a family group conference, to let them lead in decision making concerning their child, at any time. The emphasis needs to be on much earlier use – family group conferences can bring the family together to make a plan for the child before problems escalate. Families only being offered a family group conference at the point at which care proceedings have been issued is just too late. They are a tool in our armoury which encourage partnership working, and they are effective at safely keeping children at home. We as lawyers representing families must ensure that those families know that they can lead in decision making for their children in this way, and we should be consistently requesting in all of our public children cases that local authorities make referrals to local family group conference services.
Emma: What can we, as a wider legal network, do to support the charity’s aims of ensuring more families have access to legal advice and information?
Jessica: These conversations, and understanding the work that each of us do – the similarities and the differences between working in practice, and working in the voluntary sector – are essential. We need you, to help us to understand where the precise pressures and strains within the family justice system lie, and how they play out in reality. And we want to support the legal sector, to look closely at what we can do to improve matters such as policy in relation to legal aid. We want to get to a position where you are properly funded to provide legal aid advice to those parents and families who need it – working together towards this goal is key.
And as with many small charities, we have mighty ambitions, but are sometimes constrained in what we can do to achieve those by funding. So anything that our legal community can do to assist us in being able to continue doing our important work, is always gratefully received. One easy (and fun!) way to support us is for your firm or chambers to join us on Thursday 19 October for our annual quiz in London. We will be hosted by our quiz master and patron, the author and former government minister, the Rt Hon Alan Johnson. There will be wine, soft drinks and a buffet included in the price of £250 per table. The funds raised will go towards our free Advice and Advocacy service, and to some of the work of our legal team that I have described above. I hope that you can join us, and invite many more of our family law colleagues to consider buying a table too!
¹ With thanks to the Legal Education Foundation, for funding this important workstream. See here for more information.