Noble Solicitors discusses the 26 week time limitation
Draft Legislation has been released citing the Government’s plan to impose a 26-week time limit for the Courts to conclude care cases. While this seems like a sensible notion there are a number of problems with this draft legislation, namely that the limit may be restrictive and as such the principle that the welfare of the child is paramount could be undermined.
The presumption that Public Child Proceedings will be completed within 26 weeks unless there are exceptional circumstances is a somewhat unrealistic idea when realistically most cases take double that amount of time. Cases inevitably take more than 26 weeks if parents are to be provided with a genuine opportunity to make necessary changes.
It is also necessary to explore every possible option within the wider family to ascertain if the child can be placed with a family member as opposed to being placed either in long-term foster care or within an adoptive placement. To impose a 26 week deadline will destroy this option to an extent and may deny children the opportunity to maintain ties with their birth family.
The Justice Committee of the House of Commons held its first evidence session in its inquiry in respect of this draft legislation on 07 November 2012. Considerable concerns were raised in respect of the 26-week time limit for care proceedings.
Martha Cover, Co-chair of the Association of Lawyers for children described the proposed time limit as ‘impracticable’. Further to this, Martha Cover stated that data from the case management system implemented under Ryder J’s modernisation programme suggested that only approximately 30% of cases nationwide were capable of being completed within 26 weeks.
The Justice Committee concluded that ‘to try to direct Magistrates and Judges to have a deadline is potentially an unlawful interference with judicial discretion and potentially with the rights of the children and the parents.
A proportion of parties involved in care proceedings have mental health problems, learning difficulties or a combination of both and as such, it is often necessary to carry out expert assessments to allow for a fair process. These assessments undoubtedly cause a delay; however, this delay is necessary to ensure that the right outcome is achieved for the child.
If the future of a child is to be determined by a Court then the judiciary should not be restricted in terms of how long they can spend making a decision when it comes to considering what placement is appropriate. There is the very real risk that the wrong decisions may be made and that inevitably a child may be denied the chance to reside with a family member for the sake of adhering to a time limit.
By Rebecca Sheddock, Trainee Solicitor