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3.13.2 Dispute Resolution Protocol

RELEVANT CHAPTERS

Looked After Reviews

Appointment and Role of Independent Reviewing Officers

Reference: The IRO Handbook: Chapter 6, Dispute Resolutions and Complaints

AMENDMENT

This chapter was revised in August 2015 to reflect current organisational structure.


Contents

1. Introduction and Legislative Framework
2. Redbridge Local Dispute Resolution Process
  2.1 Alert and Informal Resolution
  2.2 Pre Formal Resolution
  2.3 Formal Resolution
3. Independent Reviewing Officers, the Complaints Procedure and Independent Advocates
4. Referral to CAFCASS
5. Recording and Communicating that a Child's Care Plan has been Subject to Alerts
6. Informing the IRO of any Significant Change in the Child's Circumstances
7. The Role of the Safeguarding and Quality Assurance Service Manager and Head of Safeguarding and Quality Assurance During the Management Alert Process
  Appendix 1: IRO Alert Form
  Appendix 2: IRO Dispute Resolution Flow Chart


1. Introduction and Legislative Framework

One of the IRO's key functions is to resolve problems arising out of the care planning process, for example the implementation of the Care Plan or decisions relating to it, resources or poor practice. In these situations, the IRO has the duty to negotiate with the local authority management, in the first instance informally. Should this not result in resolve the IRO should consider taking formal action and escalating his/her concerns up to the highest level, and ultimately to refer the case to CAFCASS if they believe this process has not resulted in the desired outcome. This protocol looks at this escalation process in dispute resolution.

Section 26 of the Children Act 1989 and the associated guidance and regulations recommended that Looked After Children's Reviews should be chaired by officers of the local authority who are at a more senior level than the case-holding social workers. The intention was to bring a degree of objectivity and oversight to practice and decision-making for children in care, and to monitor the activity of the local authority as a corporate parent.

Section 118 of the Adoption and Children Act 2002 amended section 26 of the Children Act 1989 by introducing a new statutory role of Independent Reviewing Officer (IRO) with the responsibility of reviewing looked after children cases. Local authorities are now required by regulations to appoint IROs to participate in the review of children's cases, monitor the authority's functions in respect of the review, and where the IRO considers it appropriate to do so refer a child's case to the Children and Family Court Advisory Service (CAFCASS) if the failure to implement aspects of a care plan might be considered in breach of the child's human rights. CAFCASS has the power to undertake legal action.

The statutory guidance for IRO’s in the ‘IRO Handbook’ was issued in March 2010 under section 7 of the Local Authority Social Services Act 1970. It should be read in conjunction with the Care Planning, Placement & Case Review (England) Regulations 2010 which came into force on 1st April 2011.

As with all the IRO's responsibilities and powers, the power to refer a case to CAFCASS applies to all Looked After Children, including those Looked After under a voluntary agreement (section 20 of the Children Act 1989) and those Looked After under a Care Order (section 31 of the Children Act 1989). Such legal proceedings might be further family proceedings (for example, for the discharge of a care order or for contact), a freestanding application under the Human Rights Act 1998, or an application for judicial review.


2. Redbridge IRO Local Dispute Resolution Process

The IRO dispute resolution process in Redbridge may also be referred to as the "IRO management alert process".

There are three elements:

  • Alert and Informal Resolution;
  • Pre Formal Resolution;
  • Formal Resolution.

2.1 Alert and Informal Resolution

It is important for the IRO to have a collaborative relationship with social work staff and management with the responsibility for ongoing care planning for the children in the care of the local authority. It is important the IRO recognises and reports on good practice by individuals or teams.

Where issues relating to practice are identified, which appear to be impacting negatively on the implementation of the Care Pan or outcomes for the children, the IRO should ensure they negotiate with management up to the highest level if necessary in order to resolve the disagreement by negotiation.

Wherever possible, the IRO will attempt to resolve a problem concerning the child's Care Plan by negotiation, including contacting the team responsible for the child and attempting to resolve the problem directly with the team. Where possible, the IRO should seek to resolve difficulties face to face or by talking on the telephone rather than relying on email. Discussions can be confirmed by email thereafter. It is not necessary to provide copy e-mail to colleagues not directly involved in the negotiated resolution.

If this proves unsuccessful, the IRO will raise the concern with the accountable Head of Division, then (if within her/his responsibilities) the Assistant Director, the Chief Children and Families Officer, the Director of Children’s Services, and only then in exceptional circumstances to CAFCASS if necessary.

Examples of situations where an IRO might have concerns and initiate the management alert process include:

  • Preparation for the Looked After Review;
  • Completion of decisions within timescales;
  • Assessments;
  • Anti-oppressive practice;
  • Supervision of a social worker;
  • Allocation history;
  • Family finding/placement search;
  • Health provision;
  • Education provision;
  • Placement choice/standard of care;
  • Endorsing Care Plan.

2.2 Pre Formal Resolution

Chairing the Review & Producing Recommendations.

Ratification of the Recommendations of a Review

The recommendations of the review will be considered by the relevant Team Manager who will notify the IRO, within 5 working days of their agreement, or otherwise. The IRO should identify any recommendations that have not been agreed and discuss these with the Team Manager to seek resolve.

If following discussions the situation remains unresolved the IRO would progress to the formal resolution process at Stage 2 (where applicable) or Stage 3. It is important that the IRO and their manager clearly understand whether the issue that has not been agreed is potentially a matter for the courts/CAFCASS (i.e. there is a danger of the child’s human rights being breached due to the actions or inactions of the local authority), or is for resolution with the agency.

2.3 Formal Resolution

There are six stages to the formal resolution process. Exceptionally when more urgent or serious concerns remain unresolved, the IRO has the discretion to proceed directly to the level s/he considers most appropriate. This would usually be Stage 3. The stages are:

Stage Responsible Officer
Stage 1: Team Manager
Stage 2: Service Manager (where applicable)
Stage 3: Head of Service
Stage 4: Chief Children and Families Officer
Stage 5: Director of Children’s Services
Stage 6: Chief Executive of the Council

An IRO must submit the relevant form (see Appendix 1: IRO Alert Form) to initiate stages 1 - 3 of the dispute resolution process. At each of these stages, a response is required within a maximum of 5 working days of receipt, unless the IRO has specified a different timescale. 

Stages 4 - 6 will be managed through a meeting, which should be chaired by the Officer who has received the alert. The meeting should be independently minuted. All key personnel should be invited to the meeting.

The IRO may attend the initial part of the meeting to clarify their position and answer any queries the local authority may have of the issues raised in the management alert form and then, in order to maintain their independency from the local authority’s decision making process, the IRO may leave.

Should the IRO exhaust all stages of the dispute process (or deem that the time it is taking to exhaust the stages is unreasonable) and (s)he believes there is still a danger that the child's human rights may be being breached due to action or inaction of the local authority, (s)he may make a section 118 referral to CAFCASS. CAFCASS is able to bring legal proceedings to achieve a remedy. 

Legal proceedings should only be considered as a last resort - i.e., in extreme cases where all other attempts to resolve the problem have failed. The additional delay associated with legal proceedings is not in the interest of the child, and every effort should be made to resolve the problem before such action is taken.

There will be times when the IRO may be advised that obstacles in the way of resolving the issue are outside or beyond the control of the local authority, for example in relation to staffing, interagency or resources issues. However, if these are impacting upon the ability of the department to meet the needs of a child as identified in the child’s care plan, the IRO should continue to escalate the issue.

The IRO guidance states that the dispute resolution process should allow for no action prejudicial to the child (e.g. change of placement or de-accommodation) to be taken until a resolution has been reached. Depending on the outcome of this, it may be necessary to reconvene the child’s case review to confirm any agreed changes to the care plan.


3. Independent Reviewing Officers, the Complaints Procedure and Independent Advocates

The IRO will work with the local authority complaints officers, Children’s Rights Advocate and advocates where necessary for the resolution of a problem. 

The IRO will need to determine whether a problem raised via a complaint is serious enough to constitute a breach of the child’s human rights or whether it would be better to await a resolution through the formal complaints procedure, with or without the additional support of the IRO. The IRO may wish to provide information and make themselves available to the officer investigating any complaint.

The IRO has a duty to inform children that they have a right to make a complaint and of the LA’s responsibility to provide them with an independent advocate. The process of advocacy and complaints can run alongside the IRO’s actions in working to resolve an issue.

If in the process of ratifying the recommendations of a review an agreement cannot be reached the IRO must ensure the child, and where appropriate, the child’s family and/or advocate are notified, in a style appropriate to the child’s age and understanding. The IRO must also ensure the child is informed of the agency’s complaint procedure, and advise it would be helpful to inform the IRO if they make a complaint. The Complaint’s Officer should also be aware of the importance of advising the IRO should a looked after child submit a complaint.


4. Referral to CAFCASS

Since 2002 IROs have had the authority to refer the case of any looked after child to CAFCASS if they are of the view that the child’s human rights have been breached and all attempts to resolve the matter with the local authority, both informally and formally, have been exhausted. The scope for such referrals is now extended and the IRO now has the authority to refer a case to CAFCASS if the IRO considers it appropriate to do so. Such a referral can be made at any point in the dispute resolution process (Regulation 45) and the IRO may consider it necessary to make a concurrent referral to CAFCASS at the same time that s/he instigates the dispute resolution process. However it is difficult to imagine the circumstances which would merit such a referral without initially attempting to seek resolve through negotiation.

In the vast majority of cases it will be possible for the IRO to address any concerns through:

  • Dialogue with the local authority, including use of this dispute resolution protocol
  • Use of the complaints procedure, either by the child directly or by an adult who is authorised to act on the child’s behalf; and/or
  • Application to the court for an order under the 1989 Act, either by the child or by an appropriate adult who is able and willing to act.

Where the child brings proceedings on his or her own behalf, the role of the IRO is only to assist the child in obtaining their own legal advice from a suitably qualified and experienced lawyer.

Where a suitable adult brings proceedings on behalf of the child, the role of the IRO is only to establish that this is done. 

Where the child is not in a position to initiate proceedings on their own behalf, no adult is able or willing to do so on their behalf, and where there is a risk of the child's human rights being breached, the IRO should refer the matter to CAFCASS Legal at the following address:

CAFCASS National Office
(Includes Ilford, Wells Street and PRFD teams)

3rd Floor
21 Bloomsbury Street
London
WC1B 3HF

DX Cafcass 310101
Bloomsbury 11

Telephone: 0300 456 4000
CAFCASS website

There is a duty lawyer each working day.

When considering whether to make a referral to CAFCASS the IRO should consider the impact that a referral would have on the child. In addition, and in advance of making the referral, the IRO must inform the Chief Children and Families Officer that a referral to CAFCASS is being considered and explain the reasons why.

The IRO can make a referral to CAFCASS by contacting ‘CAFCASS legal’3 and the information below should accompany a referral to CAFCASS:

  • Copies of any final Care Order and the final Care Plan filed in proceedings;
  • The report of the children’s guardian immediately preceding the making of any Care Order;
  • The review records from the preceding 12 months;
  • A report by the IRO explaining why the matter is being referred at this stage and setting out what steps the IRO has taken to resolve the position with the local authority;
  • Where the child is of sufficient age and understanding, a report by the IRO on the child’s wishes and feelings, including the child’s views in relation to any potential court proceedings;
  • Names and contact details for relevant professionals in relation to children’s social care and any other agencies involved, for example another local authority or an NHS Trust;
  • Any other relevant documentation including a chronology and statement of issues, a list of important people in the child’s life and their relationship and involvement with the child; and information about diversity issues for the child and family including whether the child or family members will need additional assistance to aid communication; and
  • The most recent Care Plan.

Once a referral has been made, CAFCASS will enter into final dispute resolution with the local authority before proceedings are instituted. While CAFCASS cannot refuse to accept any referral, it is the responsibility of CAFCASS and not the IRO to determine whether a legal remedy should be sought. If the problem is not resolved to the benefit of the child and within the child’s timeframe, Cafcass has the power to initiate the following types of action:

Proceedings under section 7(1) of the Human Rights Act (1998)

Claim for judicial review; and

Other proceedings (for example under the 1989 Act)


5. Recording and Communicating that a Child's Care Plan has Been Subject to Alerts

In the first instance the IRO should place a record of any initial informal resolution process on the child’s file. This would be recorded as an ‘IRO Contact’.

The IRO should verbally inform the members of a child's Case Review meeting of any management alerts they have initiated since the previous meeting or which they intend to initiate subsequent to the current meeting. The IRO should record details of any prior management alerts in the Background and Update section of the discussion summary in the Chair's Report. The IRO should record details of any intended future alerts in the Legal section of the discussion summary of the Chair's Report. 

The IRO should record details of any management alert on the relevant form in the appendix. This form should be uploaded onto the ICS system in Forms. The IRO should also ensure that it is recorded in the Case Notes section of Protocol that s/he has initiated a management alert and how and when it is resolved.

The Safeguarding and Quality Assurance Service Manager will report on the number of management alerts that have been initiated and the timescales for resolving them. This information will be included in the annual IRO Management Report.


6. Informing the IRO of any Significant Change in the Child's Circumstances

Under the Adoption and Children Act 2002 IRO Guidance (Regulation 8), the Local Authority must inform the IRO of, "Any significant change of circumstances occurring after the review that affects arrangements". 

Currently there is no statutory guidance on what constitutes a significant change and the Children and Families Management Team has agreed that the IRO should be informed of the following:

  1. Outcomes of any Panel applications including; STREP, YIP, Commissioning Panel…
  2. Outcomes of presentations to the Fostering Panel;
  3. Outcomes of presentations to the Adoption and Permanency Panel;
  4. Change of placement requests;
  5. Proposed change of placements, and where unavoidable, actual change of placements, including the relevant CSCI[1] report if it is a residential provision;
  6. Updates of Adoptions Action Plans;
  7. Court Orders and outcomes from Directions hearings;
  8. Significant delays in completing any looked after review decisions;
  9. Any period of more than three days missing from care (minutes of any missing from care meetings should also be forwarded to the IRO);
  10. Details of any strategy discussions/meetings;
  11. Any period of exclusion from school for more than five days;
  12. Outcomes from health assessments or medical consultations which identify/confirm any serious previously undiagnosed conditions;
  13. Unexpected changes in the child's family circumstances (births, deaths, etc.)
  14. Unexpected changes in the child's placement provision (which may significantly impact on placement stability);
  15. Arrests, bail, and convictions;
  16. Serious accidents;
  17. Changes of allocated social workers;
  18. Unexpected proposed or actual discharge from care;
  19. Complaints from or on behalf of the child, parent, or carer.

[1] Commission for Social Care Inspection

As a result of receiving any of the above information, the IRO may decide to convene a case review at an earlier date than was scheduled. 

Redbridge has adopted the guidance in the IRO Handbook and requires that a review must be convened in the following circumstances, prior to any of the following changes being implemented;

  1. Whenever there is a proposal for a child to leave care before the age of 18, i.e. for a child to become a relevant child, rather than an eligible child;
  2. Wherever there is a proposal (which has not already been endorsed by the IRO) for the child to move from a regulated placement (e.g. foster care or children's home) to an unregulated placement (e.g. a semi-independent unit or "independent living" facility) before the age of 18;
  3. Prior to a child being discharged from a secure children's home or leaving custody;
  4. Wherever any unplanned change is proposed to a child's accommodation that could significantly disrupt his/her education or training (e.g. having to move school during the academic year or during a programme leading to recognised qualifications);
  5. Where a change of placement is proposed for a child who has remained settled and established with the same carer, or in a residential placement, for a significant period of time and where reports have previously indicated that the placement is appropriate and the child is going to school.


7. The Role of the Safeguarding and Quality Assurance Service Manager and Head of Safeguarding and Quality Assurance During the Management Alert Process

The Safeguarding and Care Planning Manager is responsible for the direct management and supervision of the IROs. The Head of Safeguarding and Quality Assurance is responsible for the service.

The role of these managers during the management alert process shall be:

  • To provide clear supervision to the IRO, taking into consideration the issue being raised and providing feedback on the strengths and weaknesses of the concerns or disagreements being brought forward;
  • To ensure that throughout the process, lines of communication remain open and clear and that the issue does not become clouded, personalised, or lost in other processes;
  • To ensure that meetings take place on time and that they are present at all relevant meetings above the Team Manager level;
  • To provide briefing to relevant CFMT members as to the view of the Safeguarding and Quality Assurance service on the issue being raised and possible routes to resolving the issue;
  • To ensure that if appropriate, independent legal advice has been sought by the IRO at the appropriate time; to discuss this advice in supervision and consider its possible implications for the issue being raised;
  • Overall, to encourage and enable resolution prior to the issue reaching Stage 4 of Assistant Director/Chief Children and Families Officer.


Appendix 1: IRO Alert Form

Click here to view form


Appendix 2: IRO Dispute Resolution Flow Chart

Click here to view flowchart

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