Administrative Decision Making in Child-Care Social Work

British Journal of Social Work (2014) 44, 1011–1026
doi:10.1093/bjsw/bcs168
Advance Access publication November 1, 2012
Administrative Decision Making

in Child-Care Work: Exploring Issues
of Judgement and Decision Making
in the Context of Human Rights,
and Its Relevance for Social Workers
and Managers
Kim Holt and Nancy Kelly
Ms Kim Holt is a Senior Lecturer, Barrister and Head of the Division of Social Work and Social
Care, University of Bradford, UK. Dr Nancy Kelly is a Senior Lecturer in the Division
of Psychology, University of Bradford, UK.
Correspondence to Kim Holt, Richmond Building, Richmond Road, University of Bradford,

BD7 1DL, UK. E-mail: k.e.holt@bradford.ac.uk
Abstract
The Public Law Outline (PLO) introduced in England and Wales in April 2008 appeared to
hold out the promise of a fairer process for parents within pre-proceedings decision-
making processes that determine whether or not the local authority will make an appli-
cation to court. Whilst the rhetoric of the PLO to provide consensual solutions within ad-
ministrative rather than judicial decision-making processes may be laudable, there are
tensions and dilemmas in ensuring the rights of parents and children are protected
when important decisions are being made without the oversight of the court. Despite
the rhetoric of keeping children and families at the heart, there appears no relief
from the procedural and managerial processes set within a context of public sector
cuts affecting all professionals tasked with protecting children. Achieving justice for chil-
dren and families to ensure their rights are protected within a protocol that necessitates
increased resources will be a challenge.
Keywords: Child protection, child welfare, decision making, diversion, human rights
Accepted: September 2012
# The Author 2012. Published by Oxford University Press on behalf of

The British Association of Social Workers. All rights reserved.
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1012 Kim Holt and Nancy Kelly
Introduction
Within the UK, there have recently been a number of important policy and
legislative changes with regard to child-care social work. The intention of
these changes is to optimise outcomes for children and families by reducing
delay in decision making at all stages of the process both pre-proceedings
and when the court is managing a case. The aims of the Public Law
Outline (2008) and the Family Justice Review (Ministry of Justice, 2011)
are to achieve participatory and timely decision making whilst ensuring
costs and resources are managed effectively. This paper is concerned with
the implications of the changes with regard to child-care practice before
court proceedings, namely with practice that occurs within administrative
rather than judicial decision-making procedures.
The paper focuses on decision making in the context of a pre-proceedings
protocol, and provides a review of evidence to date of effective administra-
tive decision making. Whilst the aspirations of the policy and legislative
mandates to achieving consensual solutions in safeguarding children may
be laudable, this paper considers the rights of parents and children in line
with the government’s commitment to keeping them ‘at the heart’ (Ministry
of Justice, 2012). Recognition is given to the significance of the European
Convention on Human Rights (ECHR) (1950) and the Human Rights
Act (HRA) (1988) in ensuring justice for children and families.
The paper highlights tensions and dilemmas and possible unintended
consequences of the enactment of new legislation for child protection prac-
tice in a context of significant public-sector funding cuts in the UK.
Policy and legislation
The 1989 Children Act repealed previous child-care law and the act
attempted to:
. . . strike a balance between the rights of children to express their views on
decisions made about their lives, the rights of parents to exercise their re-
sponsibilities towards the child and the duty of the state to intervene
where the child’s welfare requires it (Department of Health, 1991, p. 1).
The act stated in section 17(1) that it was the duty of every local authority
(i) to safeguard and promote the welfare of children within their area who
are in need and (ii) so far is consistent with that duty to promote the level of
upbringing of children by their families by providing a range of services ap-
propriate to their needs. Guided by two cardinal principles of the act, the
welfare of the child is to be considered paramount (section 1(1)) and no
order should be made by the court unless the making of an order is consid-
ered to be in the child’s best interests (section 1(5)). The law recognised
that, whilst the welfare of the child was paramount, this had to be assessed

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Administrative Decision Making in Child-Care Work 1013
in partnership with parents and their children, and it encouraged the in-
volvement of the family in decision-making processes. Family support prac-
tices were given statutory support and, wherever possible, local authorities
were to pursue consensual solutions with families.
Subsequent revisions to the Act continue to place emphasis on the two
cardinal principles and two recent policy and legislative changes give
further impetus to engaging and supporting families with the aim of divert-
ing cases away from the courts wherever possible.
Care Matters: Time for Change (Department for Education and Skills,
2007) set out the government’s plans to improve outcomes for looked
after children and culminated in the 2008 Children and Young Persons
Act. The legislation contained a mandate towards further engaging and sup-
porting families before cases went into proceedings. These included: a re-
emphasis on the preference for placements for children with family and
friends over professional care whilst abiding by the principle that any place-
ment must be consistent with a child’s welfare; an extension of the rights of
relatives who are entitled to apply for a residence order or special guardian-
ship order without leave of the court to those with whom the child has lived
for a continuous period of one year; an amendment to the appointment and
addition to the role of Independent Reviewing Officers; and the creation of
Family Group Conferences to support family and friends at an early stage
of concerns.
The Public Law Outline (PLO) (Ministry of Justice, 2008) replaced the
Protocol for Judicial Case Management (2003) in England and Wales and
required a reordering of the way care proceedings are instigated, structured
and conducted. The PLO involves two stages: ‘pre-proceedings’ and ‘post
instigation of proceedings’; in the latter, the court process is reduced
from six to four stages, each with explicit timescales attached to procedures,
and the local authority is required to provide a detailed core assessment and
care plan at the Issuing of Proceedings and First Appointment Hearing. In
the pre-proceedings stage, the aim is to maximise the possibility of resolving
cases without proceedings and makes mandatory certain steps that are to be
taken prior to proceedings being issued. These require the local authority to
carry out assessment work prior to the instigation of proceedings, identify
and assess any possible alternative placements with relatives and friends
and explore all possible alternatives to instigating proceedings. Should
the local authority consider that proceedings are necessary (and not of
such a nature that the welfare of the child requires immediate court protec-
tion), they must convene a meeting between the social worker and local au-
thority legal advisor (a legal planning meeting), and a Letter Before
Proceedings must be sent to parents. This letter must summarise concerns,
state actions required to remedy those concerns, provide information on
what the local authority has done to safeguard the children to date and
state what outcome would be likely if the concerns are not addressed.
The Letter Before Proceedings invites parents to a pre-proceedings

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meeting to be convened with the local authority legal advisor and social
worker/s and must advise parents on how to obtain legal advice and repre-
sentation at that meeting. Whilst these procedures may have been in place
in local authorities prior to the PLO, the mandatory nature of the pre-
proceedings stage means that parents now have a more formal statement
of their position and clear information that they have the right to legal rep-
resentation at the pre-proceedings meeting.
These changes place further emphasis and demands on local authorities
to seek and evidence mediated alternatives to local authority care and con-
tinue to be underscored by the ‘no order’ principle of the 1989 Children Act
(Welbourne, 2008; Broadhurst and Holt, 2010).
The Convention for the Protection of Human Rights and Fundamental
Freedoms (commonly referred to as the ECHR) was adopted under the
auspices of the Council of Europe in 1950 and came into force in September
1953. The human rights that are enshrined within the ECHR are enforce-
able in the UK’s domestic courts by virtue of the HRA 1998. The discussion
here focuses on Article 8 (ECHR) in relation to the rights of parents and
children to be involved in decision-making processes, and makes later ref-
erence to the relevance of Article 6 (ECHR) with respect to legal advice
and representation. Article 8 constitutes a ‘qualified right’; this means
that state interference with the rights set out under Article 8 is permissible
in certain specific situations. An aspect of Article 6 protects the right of
everyone to ‘a fair and public hearing’ in the determination of their civil
rights and obligations (P, C and S v. United Kingdom, [2002] 2 FLR 631).
(Case citation is the system used to report past court cases. Although case
citations are formatted differently between jurisdictions, they provide the
key facts which include the name of the case, the year the case was
decided and the source, such as Family Law Reports (FLR), volume and
page number).
Article 8(1) provides that ‘everyone has the right to respect for his private
and family life, his home and his correspondence’. Article 8(2) prohibits the
state from interfering with this right unless such interference is justified on
one of the grounds set out in Article 8(2). Interference with a qualified right
by the state must be in accordance with the law and be proportionate to
certain legitimate aims. These include:
There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a demo-
cratic society in the interests of national security, public safety or the eco-
nomic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights
and freedoms of others.
There is compelling authority from Munby J. to support the view that

Article 8 has both a substantive and a procedural component (Bury MBC
v. D, [2009] EWHC 446 (Fam.). The substantive component of Article 8

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regulates the circumstances in which a public authority can interfere with

private or family life; the procedural component imposes upon the public
authority a requirement to consult in any interference in family life
(Munby, 2009). The relevance to practice within the PLO is that there
may be circumstances in which intervention into family life may be
agreed, namely there are child protection concerns and the threshold cri-
teria under section 31(2) are met, but where the local authority assesses
the risk as one which can be managed within the pre-proceedings protocol.
The procedural component would then require the local authority to
provide appropriate consultation and, where appropriate, the services ne-
cessary to ensure the family had the maximum opportunity to address the
concerns of the local authority with the aim of reducing risk and achieving
successful diversion from court proceedings. Ensuring compliance with the
procedural component is arguably the area in which local authorities, in a
context of severe austerity measures and a climate of regulation taking
front line workers away from operational tasks to ensure the regulatory
processes are completed, are more likely to be challenged under Article 8.
The compatibility of human rights and child protection

legislation
The issue of the compatibility of human rights and child protection legisla-
tion has been the subject of considerable international and national interest
(Farrell, 2001; Masson, 2006; Gudbrandsson, 2007; Kleese, 2008).
International concern is centred on a perceived disjuncture between le-
gislative intents of child protection laws that appear to complement
human rights legislation and institutional practices that enact legislative
instruments. In respect of Article 8, Farrell (2001) suggests there is a re-
sidual adherence to patriarchal approaches in many institutional contexts
with respect to the protection of children. In Australia, this led to ‘silencing
of stakeholders’ in child protection, notably parents and children. It has
been argued that institutional constraints can eclipse legislative mandate
(Broadhurst and Holt, 2010). Other commentators (Fawcett et al., 2004)
have argued that fault lies rather with the antithetical position of notions
of children’s rights, parents’ rights and protection that, when enacted, will
inevitably lead to breaches in one area. Legislation that on the one hand
aims to protect children but on the other requires respect of human rights
in respect of the child and parents can stand in opposition. In the UK,
this should not occur because Article 8 is a qualified right and parents’
rights must give way to those of children.
Indeed, the European Court of Human Rights gives a ‘wide margin of
appreciation’ to decisions made by local authorities to separate parents
and children temporarily (L v. Finland, [2000] 2 FLR 118, para. 118).

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The Court accepts the child’s welfare can justify actions that might otherwise
breach the parents’ rights. A ‘fair balance’ has to be struck between the inter-
ests of parent and child, and a parent is not entitled to have action taken
which would jeopardise the welfare of the child (Johansen v. Norway,
(1997) 23 EHRR 33, para. 78).
Arguably, the 1989 Children Act was subject to significant ‘human rights
proofing’ at its inception (Masson, 2006). The principles of the Children Act
remain embedded in new legislation and the introduction of the PLO, with
its mandate on pre-proceedings decision making, reflects significant com-
patibility in principle between human rights and child protection legislation.
There has been scrutiny of judicial decision making where evidence sug-
gests the rights of parents and children have breached Articles 8 and 6 of
the ECHR. For example, there are two recent cases in which the Court of
Appeal held that the circumstances in which the children had been, or
were to be, removed from the mother with judicial endorsement had been en-
tirely unacceptable (Re EH v. London Borough of Greenwich, [2010]
EWCA Civ. 344; Re S (Authorising Children’s Immediate Removal), [2010]
EWCA Civ. 421). Similarly, there is evidence from child death inquiry
reports and serious case reviews that highlight the child’s right to participate
meaningfully in the decision-making process and the right to be heard is not
afforded appropriate significance, thus potential breaches of Article 6
(Brandon et al., 2009).
Although the tendency is primarily to think of the negative obligation on
the state not to interfere with family life, this has to be balanced with the
requirement of Article 8(1) that imposes a positive obligation on the state
to respect both private and family life. The positive obligations afforded
by Article 8 may be restricted if the complaint is that the state has simply
failed to act altogether. However, when the state has decided to intervene
in family life, it is considerably more difficult to justify inaction. Where, for
example, the state in the guise of the local authority has intervened in the
child’s family life by commencing care proceedings and taking a child
into public care, the judicially enforced burdens upon the local authority
under Article 8 can be onerous (Munby, 2009, p. 4). Furthermore, the
family courts have consistently avoided any examination of competing
rights and largely ignore the principles of interpretation of the Convention
rights developed by the European Court. Thus, in Payne v. Payne ([2001]
EWCA Civ. 166, [2001] 1 FLR), the then president Butler Sloss stated:
The HRA requires some revision of the judicial approach to safeguard the
parent’s rights under the ECHR, it required no re-evaluation of the judge’s
primary task which was to evaluate and uphold the welfare of the child as
the paramount consideration despite its inevitable conflict with the adult
rights.

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The effectiveness of administrative decision making

The vast majority of care cases are resolved without going to court; indeed,
the practice of children being provided with care at the request of their
parents and without legal process is generally accepted throughout Europe.
Only where there is a lack of available alternative services has provision
been found to breach Article 8 (Saviny v. Ukraine, [2008] ECHR No.
39948/06). Clearly, social work practice is premised on the expertise, dis-
cretion and judgement of social workers. The publication of the Munro
Review of Child Protection, Final Report (Department for Education,
2011b) emphasises the knowledge and skills required of social workers,
and the review recommends systemic changes in child-care practice that
aim to redress the imbalance between high regulation and bureaucratisa-
tion and front line work and decision making with families. An emphasis
on early intervention to support families is in line with the pre-proceedings
protocol of the PLO, and frontloading work with cases to divert them away
from court wherever safe and desirable highlights the emphasis and import-
ance of administrative decision making.
Apart from reference to relevant case law, there is little available re-
search evidence of the extent to which local authorities using administrative
decision making are aware of, or follow, procedural obligations imposed
by Articles 8 and 6.
There are, however, two areas in which the effectiveness of administra-
tive decision making can be examined: first in cases in which legal chal-
lenges have been made to decisions with regard to children without the
oversight of the court and, second, in a small number of studies that have
been undertaken with regard to practice since the introduction of the pre-
proceedings protocol embedded in the PLO.
With regard to the former, we cite three examples in which legal chal-
lenges to administrative decision making illustrate clearly that insufficient
attention was paid to Article 8.
In the first example, AD and OD v. United Kingdom ([2010] ECHR
(16 March 2010)), the ECHR ruled that there had been a breach of
Article 8 for both applicants (mother and child) because of errors made
by a local child protection authority. In this case, a child was considered
to be suffering from non-accidental injuries and placed on an Interim
Care Order. The mother suggested that the child might be suffering from
brittle bone disease, yet this was unsubstantiated by medical experts at
this time. The family were required to live a significant distance away
from their home town whilst assessments were carried out. They lived
there for twelve weeks before returning home; the risk assessments had
not been carried out due to a communication error. When the family
returned home, the child was placed in foster-care outside the extended
family, where a further fracture was experienced, and additional medical

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tests now revealed evidence of brittle bone disease. It was then recom-
mended that the child be returned to the family home, and this occurred
some six weeks after the recommendation. The court considered two
aspects of the local authorities’ decisions and actions: the initial decision
to take action based on perceived risk to the child and the handling of
the case thereafter. The reasons justifying the initial decision to place the
child on an Interim Care Order were considered to be ‘relevent and suffi-
cient’, so, in this decision, adherence to the substantive aspect of
Article 8 was appropriate. However, a number of actions thereafter were
considered to be failings that ‘both extended and exacerbated the interfer-
ence with the applicants’ right to respect for their family life’. These find-
ings were identified as: the relocation of the family far from their home;
the failure to ensure the correct risk assessment was done in the first
place; dismissing without proper consideration the possibility of foster-care
with a relative; and the unreasonable length of time it took for the local
authority to return the child to the family after it was recommended. The
court held that the actions of the intervention were not necessary and
hence there had been a breach of Article 8.
In the second example, Re g. Care: Challenge to the Local Authority’s
Decision ([2003] EWCH 551; [2003] 2 FLR 42), the children were on a
care order yet the parents complained that the local authority, operating
within administrative decision-making processes after the court order, sub-
stituted an entirely new care plan involving removal of the children without
involving them in the process. Munby J. made the point that, even when
children were subject to a care order, that should not be changed without
due consultation with the parents, as this would be in breach of the proced-
ural aspect of Article 8. As Munby J. outlined:
The fact that a local authority has parental responsibility for children pur-
suant to s 33(3)(a) of the Children Act 1989 does not entitle it to take deci-
sions about children without reference to, or over the heads of the children’s
parents. A local authority, even if clothed with the authority of a care order,
is not entitled to make significant changes in the care plan, or to change the
arrangements under which the children are living, let alone to remove the
children from home if they are living with their parents, without properly
involving the parents in the decision-making process and without giving
the parents a proper opportunity to make their case before a decision is
made. After all, the fact that the local authority also has parental responsi-
bility does not deprive the parents of their parental responsibility.
In the third example, R (L and others) v. Manchester City Council ([2001]

EWHC. Admin. 707. (2002) 1 FLR 43, 8 CCLR 268), it is demonstrated
that administrative decision making resulting in local practice breached
the rights of children under Article 8 by effectively preventing the continu-
ation of family placements. In this case, the local authority paid short-term
kinship carers at a lower rate than approved local authority foster-carers,
although, once approved as long-term carers by the local authority, they

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were paid at the normal rate. Munby J. found the policy contrary to
Article 8 and the impact of the judgement was that payments to kinship
carers must be paid on the same basis as other carers, irrespective of the
length of duration of the arrangements.
In these examples, and there are many others in which legal challenges have
been made, there is evidence that administrative decision making by in-
dividuals and local authorities may not prioritise the rights of children and
families under Article 8, and the resultant outcomes for children include pro-
longed case trajectories and less-than-optimal living arrangements.
Importantly, responding to the challenge of ensuring the rights of children
and families are maintained when the local authority has intervened in
family life is the role and function of the Independent Reviewing Officer
(IRO). The IRO was introduced under section 118 of the 2002 Adoption
and Children Act. The role of the IRO is to quality-assure the care-planning
process for all looked after children and there is an overriding duty to
monitor the local authority’s performance in a child’s case, participate in
case reviews and to ensure the child’s wishes and feelings are given due con-
sideration. This was mandated by the Care Planning, Placement and Case
Review (England) Regulations 2010. In performing these duties, specific
responsibilities include: promoting the voice of the child; ensuring that
plans for looked after children are based on detailed and informed assess-
ments that are current, effective and provide a real response to children’s
needs; identifying any gaps in the assessment process or service provision;
ensuring children understand how advocates may help them and their en-
titlement to advocacy; offering a safeguard to prevent ‘drift’ in care planning
for a looked after child; and monitoring the activity of the local authority as
a corporate parent. Notwithstanding the importance of the role of the
IRO for a child who is looked after by the local authority, there is no
legal remit for the role of the IRO to be extended to the pre-proceedings
meeting where children may not be accommodated by the local authority
but where important decisions are being made about where a child should
live or if an application under section 31 should be made by the local author-
ity. In some local authorities, the IRO will be involved where children have
been the subject of a child protection conference and/or subject to a child
protection plan. In many local authorities, the child protection process
and PLO process may run concurrently but not necessarily together, so a
child may have a child protection plan and a PLO plan which is shared
(where applicable) at the next child protection conference.
Clearly, the role of the IRO appears peripheral in many PLO cases and
there is an argument for the need to make this role more central in the PLO
process. However, there are tensions with this proposal in terms of resour-
cing and independence. In many local authorities, the rise in the number of
care applications has resulted in an unprecedented number of accommo-
dated children, which has increased the volume of work for an already
stretched service. Nationally, in the year ending 31 March 2011, a total of

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65,520 children were looked after by local authorities in England—a rate of

59 per 10,000 children under eighteen years (Department for Education,
2011a).
Griffith-Jones (2007) makes a cogent case for arguing that the IRO
scheme had not been successful to that point, their status and experience
in local authorities hindered potential to influence decisions, local author-
ities did not appear to support the new role effectively in that they were
given additional other significant roles, and he suggests that there was an-
ecdotal evidence supporting the view that IROs themselves had not suffi-
ciently grasped the centrality of their role as the child’s reviewing officer.
In terms of independence, Griffith-Jones argued that over 60 per cent of
local authorities had not made provision for the IRO to have independent
legal advice. This is problematic when the IRO is employed by the local au-
thority and may have views at odds with the local authority plans and the
progress of the case. More recently, Thomas (2011) argues that, although
IROs play a key role in monitoring the effectiveness of local authority plan-
ning and review, there is little empirical research into their work.
Research evidence: the importance of independent

representation
The second body of evidence with regard to administrative decision making

comes from a small number of studies carried out since the implementation
of the PLO (Jessiman et al., 2009; Pearce et al., 2011; Broadhurst and Holt,
2011). It is recognised that presenting direct evidence solely with regard to
administrative decision making is difficult, as research specifically exploring
decision making pre-proceedings post the PLO is at present limited, or
ongoing. There is some research prior to the PLO that suggests that pre-
court advocacy for parents was useful in reassuring parents with informa-
tion and advice, and in providing them with opportunities to help cope in
stressful meetings and to feel less railroaded (Lindley et al., 2001). Whilst
this study had a very small sample size, significantly, families felt that a
protocol now embedded in the pre-proceedings stage of the PLO would
be useful, but that there needed to be a routinised referral system in
place, such as a local advocacy service. Families were also concerned that
seeking an advocate would not be perceived as confrontational, or incurred
a risk of being used against them.
Discussion now concerns the realities of practice in pre-proceedings de-
cision making in relation to Article 6: the rights of families and children
to be heard. An aspect of Article 6 protects the right of everyone to a
‘fair and public hearing’ in the determination of their civil rights and obli-
gations (P, C and S v. United Kingdom, [2002] 2 FLR 631).

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When judicial decision making is taking place, the parents and children
may be represented by a professional advocate, usually a barrister/solicitor
specialising in family law, and the rights and welfare of children are also
separately represented and advocated for by the Family Court Advisor.
For the first time in administrative decision making, the introduction of
the PLO required the local authority to inform the parents of their rights
to be represented at the pre-proceedings stage and the Letter Before Pro-
ceedings makes a statement to this effect; it can also inform parents of the
possibility of obtaining legal aid at this point. So the PLO would appear to
be compliant with Article 6, and explicitly affords an opportunity for the
parents to draw upon legal advice, potentially redressing an imbalance at
this stage.
However, it seems that there are a number of issues. First, as outlined in
the introduction, it is argued that independent representation of children is
essential if the rights and needs of children and parents are not to be con-
flated; this is not required by the PLO. Second, is the effect of Article 6 a
duty that the decision maker—the local authority—permit representation
for parents and children or are there circumstances in which the effect
means that the local authority has a duty to ensure representation for
parents and children? It is probably too early to assert unequivocally that
there is a duty to ensure representation, and the resource implications of
such a requirement would clearly incur significant cost in terms of
finance and time. Yet the opportunity for parents to draw upon legal ex-
pertise would appear to hold out the possibility of a ‘fairer’ process.
There is a significant body of literature outlining the difficulties of en-
gaging with families in ways that fully afford their right to be heard in the
decision-making process. Reasons include the difficulties of engaging
with families with complex needs and varying levels of co-operation, well-
documented difficulties with multi-agency working, the increased bureau-
cratisation of child-care practice and decrease in face-to-face contact with
families, and the constraints of economic and cultural resources (Brophy,
2006; Harlow and Shardlow, 2006; Masson et al., 2008; Broadhurst et al.,
2009; Shaw et al., 2009; Broadhurst and Holt, 2010). It seems pertinent to
suggest that engaging with families in pre-proceedings work is more
pivotal than ever in terms of the likely trajectory of child-care cases.
Jessiman et al. (2009) explored the process of the PLO where cases had
gone into court proceedings. In Jessiman’s study, they noted that the
PLO, amongst other things, had not appeared to enhance parental capacity
to benefit from legal advice at the pre-proceedings stage. Families had in-
evitably been involved with local authorities for extended time periods,
and Jessiman suggested two kinds of reasons for the relative ineffectiveness
of the opportunity for pre-proceedings legal advice. First, an issue concern-
ing the families themselves; here, reasons included families own vulnerabil-
ities or limited capacity to understand the Letter Before Proceedings and,
importantly, a perception by some families that investment by the local

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authority in pre-proceedings work may indicate an intention to issue pro-

ceedings anyway. Second, issues concerning the operationalisation of the
pre-proceedings protocol; this included a perception on the part of families
that legal representation was somehow part of the institutional system that
threatened them (the Letter Before Proceedings inviting parents to obtain
representation is a stark reminder that care proceedings are a very real pos-
sibility). Legal advocates in Jessiman’s sample also suggested that the very
short timescale between the Letter Before Proceedings and proceedings
being issued might not give time for meaningful engagement with parents.
Broadhurst et al. (2011) observed fifteen pre-proceedings meetings in two
local authority sites and, whilst their qualitative study was primarily focused
on the microanalysis of talk between parents and professionals (team man-
agers, social workers and family support workers), there was opportunity to
observe and reflect on the presence and participation of legal advocates.
Overwhelmingly, it seemed the case that advocates, who included parale-
gals and solicitors, remained silent during the pre-proceedings meeting.
In all but one of the meetings observed in which there was a legal advocate
present, ‘very little input from these advocates was discernable’ (Broad-
hurst et al., 2011, p. 7). Whilst work may have been carried out prior to
the meeting, and there may be circumstances in which it is inappropriate
for the legal advocate to intervene at the meeting, it does seem there is
further evidence that effective representation for parents at the pre-
proceedings stage is problematic. In Lindley et al.’s (2001) study, advocates
did sometimes challenge the local authority, but some were less likely to do
so, and, in other cases, ‘the advocate had limited impact because of social
services intransigence’ (Hunt, 2010, p. 113).
As argued elsewhere where cases do proceed to court (Masson, 2008;
Jessiman et al., 2009) reductions in legal costs in family work inevitably
impact on fair access to justice, and the financial level at which pre-
proceedings advice has been fixed means that experienced child-care
lawyers often feel that they cannot provide meaningful advice for parents
pre-proceedings.
There are currently a number of initiatives and research projects ongoing
specifically in relation to pre-proceedings decision making and the out-
comes of these will be crucial in examining the impact of the PLO for fam-
ilies and children (Masson, J., University of Bristol, and Dickens, J.,
University of East Anglia: ‘Families on the edge of care proceedings: The
operation and impact of pre-proceedings processes in children’s social
care’; Broadhurst, K. and Doherty, P., University of Lancaster, Holt,
K. and Kelly, N. University of Bradford; and CAFCASS: ‘An evaluation
of the early intervention of Family Court Advisors in pre-proceedings
work: West Midlands pre-proceedings pilot study’; Ernst and Young,
‘Tri Borough Pre-Proceedings Pilot: Innovative approaches to improving
outcomes for children in child care court proceedings’).

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Although it is too early to assert that independent representation is

required in all cases, as this will clearly have resource implications, the evi-
dence to date is suggesting impressions of families are obtained and import-
ant decisions are being made within pre-proceedings meetings that can
significantly alter the trajectory of a case. The meetings resemble a quasi-
judicial setting which is difficult for all parties but, within this process,
parents and children have less power and arguably have more to lose. The
local authority have the benefit of expert evidence and legal advice—
parents respond to the Letter Before Proceedings often without the
benefit of independent advice, or the knowledge of what may be available
to them to avoid going to court. Parents’ responses to the concerns of the
local authority are often perceived as non-engaged or passively resistant,
when in fact the opposite is evident and parents are very much engaged
but not agreeing with the either the concerns or more often the plan which
needs to be acknowledged by the local authority and dealt with. The
agenda of the local authority remains dominant within the pre-proceedings
meeting and, in some cases, it is evident the local authority have a clear pos-
ition and there is little room for manoeuvre (Broadhurst et al., 2011).
Conclusion
Legislators and policy makers have a desire to ensure the PLO is effective,
as the Family Justice Review’s recommendation of achieving case reso-
lution in twenty-six weeks is dependent upon an effective pre-proceedings
protocol that diverts cases away from court or ensures that, when proceed-
ings are issued, there is agreement on areas of dispute and a narrowing of
issues before the court to avoid protracted proceedings for children and
families. The aspirations of the PLO to engage with parents to achieve con-
sensual solutions are desirable and consistent with the principles of good
social work practice, natural justice and human rights. However, frontload-
ing child-care work in this way is not without difficulty. There is evidence
that administrative decision making may not take due account of the
rights of parents and children under Article 8 of the ECHR, including
both the substantive and procedural aspects of this legislation. In particular,
the procedural aspect of Article 8 seems to be more open to interpretation
and discretion, and the extent to which local authorities are aware of, or
operate, decision making commensurate with this aspect can be challenged.
It is important therefore to embed an understanding amongst social work
practitioners and managers of the centrality of the positive obligations
afforded by Article 8, and for them to be confident and explicit in assess-
ments and documentation of how this has been achieved. In respect of
Article 6 of the ECHR, there is evidence that administrative decision
making may not pay due regard to the rights of parents and children
to be consulted and participate in decisions that affect their lives. Whilst

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engaging with families on the ‘edge of care’ may understandably be diffi-

cult, it remains the case that legal advice and representation in such cases
are largely weighted in favour of the local authority. The PLO makes expli-
cit the rights of legal representation for parents, yet evidence so far suggests
that, even when this does occur pre-proceedings, it can be problematic.
There is little evidence of independent representation for children in pre-
proceedings decision making.
The resource issues inherent in implementing an effective pre-
proceedings protocol that is compliant with Articles 8 and 6 of the
ECHR are clear.
Social workers are tasked with completing all assessments and demon-
strating that all possible alternatives to issuing proceedings have been
carried out and, if a case does proceed to court, local authorities must
produce evidence to this effect. The increase in volume, bureaucratisation
of child-care practice and public sector funding cuts indicates a tension
between the ideal of keeping families at the heart of the system and the
reality of engaging in effective decision making. Whilst local authorities
are responding to the recommendations of the Munro Report (2011),
current working practice remains embedded within a high regulatory
culture with little time for face-to-face contact with families and their chil-
dren (Wastell et al., 2010).
Changes to legal fee structures currently mean that experienced family
law professionals are less likely to be involved in pre-proceedings decision
making. To involve experienced advocates and thus redress the imbalance
of power at this stage would potentially incur significant cost. Furthermore,
systemic change is required to ensure the court’s confidence in the robust-
ness of pre-proceedings work to avoid the possibility of further delay for
families when cases proceed to court and further evidence/assessments
are ordered culminating in a double delay and additional costs.
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Administrative Decision Making in Child-Care Social Work

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British Journal of Social Work (2014) 44, 1011–1026

Administrative Decision Making

Correspondence to Kim Holt, Richmond Building, Richmond Road, University of Bradford,

Accepted: September 2012

# The Author 2012. Published by Oxford University Press on behalf of

Policy and legislation

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There shall be no interference by a public authority with the exercise of this

There is compelling authority from Munby J. to support the view that

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regulates the circumstances in which a public authority can interfere with

The compatibility of human rights and child protection

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The effectiveness of administrative decision making

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In the third example, R (L and others) v. Manchester City Council ([2001]

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65,520 children were looked after by local authorities in England—a rate of

Research evidence: the importance of independent

The second body of evidence with regard to administrative decision making

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authority in pre-proceedings work may indicate an intention to issue pro-

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Although it is too early to assert that independent representation is

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engaging with families on the ‘edge of care’ may understandably be diffi-

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