SCOPE OF THIS CHAPTER
This chapter deals with the process for Resolution of Disputes between IROs and the Local Authority regarding Care Planning for Looked After Children (including Referral to the Children and Family Court Advisory and Support Service / CAFCASS).
OTHER RELEVANT CHAPTER
OTHER GUIDANCEThe Advocacy Services and Representations Procedure (Children) (Amendment) Regulations 2004
To ensure that resolution of disputes about looked after children's care plans, rights and needs is achieved in a timely manner and at appropriate management levels within the Council or by referral to Cafcass by Independent Reviewing Officers (IROs).
2. Values and Principles
If the Council adequately implements its corporate parenting duties towards Looked After Children, abuses of children's rights should not occur or should be rectified by actions taken within the Council and its partner agencies. Where disagreements or differences in opinion arise, every effort should be made to resolve matters on an informal basis and at the lowest tier of management however, the child's welfare is paramount and therefore the IRO should address matters at the level of management appropriate to achieve a timely resolution, taking into account factors such as authority to access resources and the severity of the concern. The IRO authority to refer to Cafcass can be utilised at any point in the process and does not have to wait until all other options have been exhausted if this would result in delay for the child, but internal negotiation and dispute resolution must have been commenced for a referral to Cafcass to be made.
It is important to ensure that consideration is given to the location of timings and venues of meetings, any specialist aids, adaptations that might be required for people with a disability. People who do not have English as their first language will require the use of the interpretation service and may request that they are accompanied by an advocate.
The Independent Reviewing Officers (IRO) Handbook requires that IROs provide robust, appropriate challenge to ensure that looked after children's needs are met in a timely manner. Where the IRCO is of the view that the local authority:
- Has failed to address the needs of the child set out in their revised care plan; and/or
- Has failed to review the case in accordance with the CP,P & CR Regulations; and/or
- Has failed to implement effectively any decision made at a review; or
- Is otherwise in breach of its duties to the child in any significant way.
The IRO must advise staff at an appropriate level of seniority of this failure and these managers must then work towards resolving the failure within a timescale that meets the needs of the child.
here therefore needs to be a mutually accepted process for resolution of any disputes with case management staff about how best to achieve this for a looked after child. The authority to refer looked after children's cases to Cafcass for resolution of abuses of their rights is invested in the IRO role. They also have the authority to negotiate up to the highest level of management in the Council, i.e. to Chief Executive where necessary. They should also work with the LA Complaints Officer and advocates where necessary to resolve problems.
The IRO must take into account the child's wishes and feelings, subject to age and understanding, in determining which actions should be taken to address problems on their behalf. The IRO may determine that the child's wishes and feelings are not in accordance with their best interests, and may still need to pursue a course of action with which the child disagrees.
If a referral is made to Cafcass, details of the legal documentation required, good practice and how to resolve problems may be found on the Government website.
Also, there is a privileged Legal Advice helpline (via Cafcass national office, 08443533392) for informal advice about whether any particular situation may possibly amount to a breach of the child or young person's human rights. IROs are advised to consider this option before embarking upon the formal referral process.
The timescale for the resolution of disputes will depend on the nature of the concern, level of resources to be allocated to resolve this and level of risk/need but the IRO Handbook maximum timeframe of 20 working days applies. Examples of reasons for use of this procedure and approximate timescales are given in Appendix 1: Examples of Dispute Resolution Types / Timescales.
- When an IRO identifies an unmet need or abuse of a child's rights or other staff disagree with an IRO's recommendations, this should be addressed in the first instance by discussion and negotiation with the case worker and/or the Team Manager or other relevant manager responsible for the case. Agreed outcome should be recorded on the child's record on Liquidlogic, either as part of the Review Report or a Quality Assurance Process by the IRO;
- The IRO will make the child and/or family aware of the Representation and Complaints Procedure and the child should be advised of their right to an advocate;
- If the matter is not resolved through by the Quality Assurance Process (QAP) at Team Manager level, the IRO will move into formal Dispute Resolution and may convene a meeting to address this. At this point the dispute will be logged on Liquidlogic by creation of the IRO's Dispute Resolution (DR) questionnaire on Liquidlogic. In most instances this Dispute Resolution meeting will be attended by the Group Manager and IRO Manager but, dependent upon the level of resource, intervention required or speed of action needed, it may involve senior tiers of management e.g. agency placement, specialist educational provision or halting a placement move. Alongside this, the young person may still also take their own action e.g. use of an advocate, the Complaints process or by seeking their own legal advice, subject to age and understanding;
- If a resolution is agreed at the DR meeting, the IRO should record this and outcome the DR on Liquidlogic, setting up any monitoring required to check implementation;
- If no resolution is agreed and the IRO is still of the view that the child's rights/welfare are in jeopardy, they will need to determine whether to reconvene the DR meeting to involve more senior manager/s, whether to refer to Cafcass alongside this progression, or whether it cannot be resolved internally and only referral to Cafcass is appropriate. This next course of action will be recorded on Liquidlogic by the IRO and the DR will remain open;
- The DR will eventually be outcomed once the DR process ends completely;
- In the event of disagreement between the IRO and Manager about how to address an abuse of a child's rights, the Hull Safeguarding Children's Partnership Manager will mediate, but is should be noted that only the IRO has the authority to decide whether to refer to Cafcass or not;
- If a referral to Cafcass is being considered, the IRO must first establish if there is any other independent person who is able and willing to take on the case on the child's behalf;
- If h. above is not possible, then the IRO will refer the matter to the Cafcass Legal team who will determine any action from here onwards. Full details of documentation required are detailed in the IRO Handbook;
- Following the referral to Cafcass, if the IRO establishes that the child's rights are now being adhered to and their needs met, Cafcass should be notified of this change of circumstances for a decision about the possible withdrawal of the referral;
- During the life of the case with Cafcass, they will provide regular progress reports to the IRO, the Chief Executive, social worker and any other relevant parties. The IRO should liaise with the social worker to ensure that the child and family are kept informed and the child's wishes are reviewed;
- The IRO Manager will monitor the use of this DR procedure, and provide information from its use, to inform the Legal Gateway Panel of any trends, identified resource shortfalls, patterns of poor practice or other information which would assist with service delivery improvements. Likewise, the outcome of any referrals to Cafcass will be monitored by the IRO Manager, who is also responsible for an annual report to the Lead Elected Member for Children's Services. This report would include details of such cases.
5. Legal Provision Relating to Proceedings
The allocated IRO who undertakes Looked After Reviews for any child or young person who is the subject of ongoing Family Court proceedings, at any point:
- Is entitled to contact the local authority solicitor dealing with this matter, to seek information about the process and progress of the case; or
- Should provide information on a case to the solicitor if these facts are pertinent to the proceedings;
- Should provide the solicitor with a copy of all Review reports.
- Provides the IRO with copies of documents within the proceedings, notably the care plan, expert's reports and assessments, the Children's Guardian's report and the final Care Plan;
- May also approach the IRO during proceedings for confirmation of care planning details as ratified at the LAC Reviews or details of any dispute.
There may also be times when IROs will need to clarify legal advice on cases where proceedings have ceased e.g. contact arrangements agreed when Care Orders were granted, and may approach the Council Legal Section to access this information.
If the reason for the IRO seeking legal advice is due to a concern that the Council may be breaching the child or young person's human rights and the IRO has not been able to resolve this internally, the Legal Services Manager will act to provide independent legal advice to the IRO and/or will attend a joint meeting with both the IRO and the social work team staff. If the Legal Services Manager considers that they would still have conflict of interests due to their line management of the solicitor for the case, the IRO will seek independent legal advice in accordance with arrangements for this which are established by the Council. Note that independent legal advice will not be commissioned before the procedures for resolution have reached at least Group Manager level.
Appendix 1: Examples of Dispute Resolution Types / Timescales
These examples are provided for guidance only as each individual child's needs and the timeframe for resolution of disputes will vary substantially depending on the level of risk and need. They will usually fall into three main categories: practice concerns, resources and delay or drift.
|Subject of Dispute||Type*||Level of process**||Timeframe (Working days/hrs)|
|Parent or child not informed of plans, invited or consulted for review.||P||SW/TM||48 hrs|
|Non attendance at review by social worker.||P||TM||7 days|
|No social worker allocated to case.||R||GMSM||7 days|
|Children's Social Care Assessment, Care Plan, Pathway Plan, PEP not provided or inadequate.||P or R||SW/TM||14 days|
|Health Assessment not completed or inadequate.||P or R||LAC Health Nurse||14 days|
|Level/arrangements for contact with parents - review recommendations not implemented.||P or D||TM or GMSM||7 days|
|Contact with siblings - ditto.||P or D||TM or GMSM||7 days|
|Discharge of Care Order/Child Arrangements Order not progressed.||D or R||GMSM(AHoS if needs resource)||20 days|
|Plan to move child, not in line with care plan/child's needs ( plans for move or be halted during DR process).||P||GMSM OR AHoS||7 days|
|Delays in family finding/placement identification.||D||GMSM (LAC)||20 days|
|Education provision not meeting needs.||R||AHoS/Virtual Head teacher||20 days|
|Need for specialist agency provision (to be requested via P & S Panel).||R||GMSM and AHoS||20 days|
|Care plan (i.e. main intended placement) not appropriate.||P or R||TM/GM||14 days|
|Risk to child in placement - safeguarding concerns.||P||TM/GM||24 hours|
|Poor or dangerous practice by any professional. (Sensitively recorded on the child's file with any personnel issues dealt with outside the case record).||P||Line Manager or above depending on severity||24 hrs - 5 days|
|Placement visits to child not being undertaken.||P||TM||20 days|
*Type: Practice – P; Resources – R; Delay or drift - D
**Level of process: TM – Team Manager; GMSM – Group Manager; AHoS – Assistant Head of Service