The rule applies save in exceptional circumstances, focusing the courts on the core issue of determining whether the child should go into care.  Although we have not had a case decided by the Court of Appeal on what circumstances would warrant an extension of the 26 week timetable, Re B (A child) [2013] UKSC 22 gives some guidance. Lady Hale made clear that the test for severing the relationship between parent and child is very strict and will only be found to be satisfied in exceptional circumstances and “where nothing else will do”.  Therefore all potential options for the child must be explored.

Ultimately all options should be explored within the 26 week timetable and in order to avoid an extension of time there must be robust case management. In Re B-S [2013] EWCA Civ1146 it made clear that the evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against option.’(para 34). We then must take a ‘global, holistic evaluation’ of the evidence (para 44).

Often forming part of this evidence are expert witnesses and reports. The 26 week rule discourages reliance on the unnecessary use of these.

Sir James Munby has said that ‘What is required is a major change of culture. Three things are needed: first, reduction in the use of experts, second a more focused approach in the cases where experts are still needed: and third, a reduction in the length of expert reports’.

Accordingly an expert will now only be appointed if ‘necessary’, a word defined as falling somewhere along the scale between ‘indispensable ‘and ‘useful’. (see Re H-L (A Child) [2013] EWCA Civ 655 para 3).

The question remains; can the demands for a rigorous and holistic analysis can be realistically met with the timescales of the revised PLO?  The Court of Appeal in Re B-S [2013] EWCA Civ1146 dealt with this point at paragraph 49:

‘We do not envisage that proper compliance with what we are demanding, which may well impose an more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statue, that care cases are to be concluded within an maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with.’

A balancing exercise between the Court’s ability to make an informed decision from the evidence before it and the impact of the delay for the child is essential. The 26 week limit has the potential to significantly limit the ability of parents who are contesting applications for Care Orders to acquire the additional evidence needed to challenge the respective local authority’s case. This additional evidence may be crucial in satisfying the “nothing else will do” criteria and therefore the 26 week rule has the potential to conflict with this.

However Sir James Munby concluded that there is no incompatibility but that:

“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

Therefore it is clear that the crucial nature of these proceedings requires that you dot every ‘i’ and cross every ‘t’ and any questions raised about certain aspects of the evidence before the Court should be to explored to the full extent and not simply dismissed due to time constraints.