The President of the Family Division, Sir Andrew McFarlane, has devoted his latest A View from The President's Chambers to the need for all involved in public law children cases to reconnect with the core principles of the Public Law Outline ['PLO'], as set out in Family Procedure Rules 2010, PD12A.
The President says:
"I am now embarking on a campaign to exhort, require and expect every single professional, judge, magistrate or staff member in the system to get back to operating the PLO in full and without exception. By announcing this campaign now, in mid-November, my aim is for the necessary change in working practices to 'go live' in all local authorities and courts throughout England and Wales on Monday 16 January 2023."
After explaining the need to reconnect with the PLO and for the Family Courts throughout England and Wales to do so together, he sets out basics of what is required:
• The PLO Pre-proceedings process, with the engagement of parents and a thorough assessment exercise, following the DfE Guidance and the PLWG recommendations, is essential;
• Only those very rare cases that are truly urgent should be the subject of an 'urgent' first hearing. Too often an 'urgent' hearing is sought as a matter of course. Urgently fixed hearings are seldom fully effective and a further hearing or hearings will normally be required;
• The first hearing should be the Case Management Hearing ['CMH'], held 'not before Day 12 and no later than Day 18'; an advocates meeting is to be held no later than 2 days before the CMH [see PLO Stage 2];
• Parents to be expressly required to identify any family members for assessment at, or within a week of, the CMH;
• No other hearing should normally be listed after the CMH until the Issues Resolution Hearing ['IRH'];
• Since 2016/7 there has been a 33% rise in the number of experts instructed. Experts should only be instructed where to do so is 'necessary to assist the court to resolve the proceedings justly', rather than where it is merely desirable or helpful [C+FA 2014, s 13(6)].
• The third hearing in the case, if necessary, will be the Final Hearing;
• At the IRH or Final Hearing the court is only required to evaluate and decide upon the following issues:
– Are the s 31 threshold criteria satisfied?
– If so, what are the 'permanence provisions' of the care plan [CA 1989, s 31(3A)+(3B)]; and
– What are the contact arrangements [CA 1989, s 34(11)]?
– By affording paramount consideration to the welfare of the child, what final order(s), if any, should be made.
- The court is not required to consider any aspect of the care plan other than the permanence provisions;
• Robust case management by the court is required at all stages. This will include, where necessary, regular 'compliance' hearings to deal with any failure by a party to meet dates. All parties will be expected to monitor compliance with the court timetable and, if needed, report any failures to the court.
The President adds more generally, and in tune with the elements of the PLO listed, that there is a need to make cases 'smaller' by reducing the number of hearings per case and by making 'every hearing count'.
For A View from The President's Chambers, click here. For the PLO, click here.
