In March 2022, McFarlane P issued Case Management Guidance in Public Law Children Cases (‘Make Every Hearing Count’). The Guidance set out that…
“Applications for independent social workers… assessments should not be necessary. The culture should be of judges (and guardians) trusting assessments made by the local authority, unless a reason not to do so is established”.
The context of that Guidance (increasing delays to final disposal & increased numbers of hearings) has echoes of that described by the authors of the 2011 Family Justice Review. That review also made recommendations to curtail the use of ISWs which were implemented in the Children & Families Act 2014 by permitting instruction only when ‘necessary to assist the court to resolve the proceedings justly’
The basis given for curtailment in McFarlane P’s Guidance was ‘The social worker is likely to know the family better than an ISW… and many such assessments add little or nothing to what the social worker can and should be able to tell the court’. The 2011 Family Justice Review (interim report) cited ISW assessments as causing delay within proceedings, duplicating existing assessments or providing ‘second opinion’ evidence.
The research published by Dr Julia Brophy (The Contribution of Experts in Care Proceedings, 2012) in response to the 2011 Family Justice Review identified that many of those assertions were not supported by evidence and, in fact, recognized situations in which ‘value’ had been added by the instruction of ISWs through:-
- Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child) including, notably for the parents, the perception of independence.
- Ability to able to engage and spend time with difficult and disaffected parents and engage in reflective practice.
- Provision of skills and expertise tailored to the specific needs of the case & skills in observation, interpretation and analysis of information.
- Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings; provision of a report which is evidence-based and forensic in method; and use of research in presenting issues and opinions
The prospect of prompt case resolution and/or the avoidance of a protracted final hearing resulting from the instruction of an ISW was alluded to by Thorpe LJ in B (a child), Re [2007] EWCA Civ 556
Dr Brophy’s conclusions & Thorpe LJ’s judgment are as relevant today as they were a decade or so ago and are further supported by research (by CAFCASS, 2012) and the widely reported challenges faced by all social work professionals in terms of capacity and corresponding ability to provide ‘value’ in the way that ISWs can (in the terms described above).
Case law also serves to:-
- reinforce the need for sound assessments (B (a Child), Re [2013] UKSC 33 – the Supreme Court emphasized the court must have the best evidence upon which to proceed); and
- identify circumstances in which particular expertise/training, often beyond that held by local authority social workers conducting assessments is needed such as when assessing, for example, complex risks (J (A Child)(Resolutions Model) (Rev 1) [2021] EWFC 58 or parents with particular cognitive or physical disabilities (D and E (Parent with Autism) [2020] EWFC B18 & C (A Child), Re [2014] EWCA Civ 128); or
- identify when assessments have not been prepared with due rigour or adequately critiqued by the CAFCASS guardian (Z-O’C (Children), Re [2014] EWCA Civ 1808).
No doubt McFarlane P’s Guidance will cause the judiciary and practitioners to further reflect on the necessity for expert instruction. However, I hope that the necessity requirement will continue to be seen in the context of both the imperfections of the current system and the value that ISWs have been found to add to cases, as Dr Brophy concludes “Foremost for courts is that children, and just and fair proceedings, cannot wait. Immediate availability of high quality and timely assessments is imperative if timescales are to take precedence. Avenues must remain open to courts, guardians and local authorities to obtain the best evidence; no option should be immune from question or bypassed in that exercise” (Neither Fear Nor Favour, Affection or Ill Will: Modernisation of Care Proceedings and the Use and Value of Independent Social Work Expertise to Senior Judges, 2013).
