A little observation based on some things I’m seeing in care cases whose final hearings were bumped due to Covid and whose adjourned fixtures are now taking place. I have now done a fair few of these, and of course as time passes these cases feature a larger and larger window since the original FH was bumped.
As much as we may all feel that our lives have been frozen in aspic since March, in fact the clock has not stopped from a forensic point of view. Time, and life marches on. In some homes the position has remained pretty static. In others the opportunity has been seized – to sort out the house, to go on (online) training, to refocus on the children. And in yet others wagons have sadly been fallen off of, overdoses taken and chaos and neglect recurred. The picture is inevitably mixed. Particularly for those who were home with children during what in most cases is a 6 or 7 month gap between the filing of ‘final’ evidence in anticipation of a March or April final hearing and late 2020, the picture may have changed. Or at any rate someone might argue that it has. Increasingly, a parent is likely to pop up at the final hearing saying ‘that was then, this is now. The social worker hasn’t even been around for x weeks’.
And this has implications for final evidence filed in March : It might no longer be representative. If there have been subsequent changes those changes will not have been weighed in the balance. Perhaps those changes would make no difference, but if a local authority cannot demonstrate it has given them thought ‘because covid’, the social worker is likely to be subjected to some sticky questions in the box and may find themselves unstuck.
I’d like to think this is an obvious point, but, from the fact I am writing this post, you will gather that I am discovering it is perhaps not obvious to everyone (It has not been obvious to everyone I have cross examined recently, that’s for sure).
So, my gentle little reminder is this : Re B-S and all that good law from 2013 and onwards STILL APPLIES. The court will need an holistic analysis of ALL the pros, cons, risks, benefits and detriments AS AT THE DATE OF TRIAL. It is no good saying ‘As at March 2020 it was clear nothing else would do’ if it is no longer clear that is the position in November or December 2020.
It is no good saying ‘the parents have had the benefit of full and robust assessment, which was negative’, if that assessment has been superceded by events, and nobody has thought about them.
If parents are saying they have made steps forwards since your adjourned FH, then gather information, explore it, analyse it, and file and updating statement with your revised analysis. It might change your view, it might not, but you owe that much to the family – and the court.
Covid has been awful in many ways, and in cases concerning vulnerable children in particular, has caused terrible delay : generally a bad thing. But the silver lining of Covid has been that, for a few parents, they have had an unexpected opportunity to make and demonstrate changes that would otherwise have been unavailable because it was outside the child’s timescales – and some, not many perhaps, have made enough change to tip the balance in their favour and to change outcomes.
Those acting for parents approaching delayed final hearings should be considering whether or not there is a need to file updating evidence of change (or indeed for those representing clients whose lives have unravelled during lockdown they may need to offer revised advice). Those acting for social services and guardians should be considering whether or not there is a need to update their enquiries and analyses and file updating statements (including, where appropriate, changing their care plan). I’ve seen some evidence of assumptions and assertions by social workers that lockdown would inevitably have increased risk (through decline in mental health, increase in isolation and substance abuse and lack of visibility), but little evidence so far of any real attempt to consider whether a parent or adult previously assessed as unable to manage long term care might have stabilised and moved forward whilst the proceedings were paused. Others of course may be seeing different things.
Maybe in most cases this updating exercise will make little difference at all. But in some it might. Whilst I know social workers and guardians are overwhelmed with work, their duties are no different during lockdown than they were before. I have seen several instances of social work professionals being unwilling to accept parental assertions of change at FH, but unable to effectively challenge or counter them because they simply haven’t been doing any work on the case, haven’t made their own observations, having left the case on the side ready to go in the oven whilst they prioritised other cases in their caseload. Whilst that is understandable from a workload point of view it does not make for compelling evidence in a contested final hearing. And the risk of professionals not properly reappraising a case before an adjourned final hearing is that even further delay may be occasioned, because there is a gap in the evidence that will take time to plug.