Examination of Witnesses (Questions 100-116)
MS KATHERINE
GIEVE, MR
PETER WATSON-LEE
AND MS
CHRISTINA BLACKLAWS
TUESDAY 29 APRIL 2003
Ross Cranston
100. I want to get a sense of whether this is
a national problem. When we had evidence from the judiciary, I
was very struck by the fact that the circuit judge from Manchester
said, "This is not a problem in Manchester". Now Ms
Blacklaws and Ms Gieve have said quite rightly that they are London
practitioners and Mr Watson-lee said it is a problem partly in
Bournemouth, but I often am told that the sky is falling in in
relation to a particular public service and when I inquire in
my area of the West Midlands that is not the case. We can so easily
look at these things through the eyes of someone in London rather
than nationally. You may not be able to come back today but in
respect of both the Law Society and the Association I wonder if
subsequently you can come back and report nationally on whether
this is a problem in the north east, the north west, and so on?
(Ms Blacklaws) In fact, that is exactly what we have
been doing at the Law Society. We issued a questionnaire to all
the Law Society Children Panel members, quite detailed and lengthy,
trying to elicit what the situation is in their particular area.
We have had many of these surveys returned; they have been analysed;
and we hope to be able to give you the written evidence prior
to our next submission on 6 May.
101. Thank you. I was going to go on to talk
about the growth of human rights, and you have touched on this
by saying that we are much more conscious of the rights of the
child than we were, and again the judiciary said that possibly
with the increase in consciousness of human rights issues and
the rights of the child under the Convention and so on there are
going to be increased demands, and I wanted to ask you really
about your assessment of that. Are there going to be increased
demands on CAFCASS in the future because of this? We all know
about societal changes and pressures that can similarly give rise
to increased demands, but have you got any view on that?
(Ms Blacklaws) Certainly what has happened in the
public law sphere is that the human rights issues have started
to percolate through the cases, so that human rights points are
being taken and obviously that lengthens the cases. Particularly
in relation to representation of children in private law proceedings
obviously that affects Articles 6, 8 and 12 of the Convention.
Concerns are held by practitioners that at present we may well
not be human rights compliant in our approach with the disparity
between what we do in public law and in the private law sphere
in respect of children, so I think that inevitably, if we are
able to raise our game and treat children in private law proceedings
as favourably as we are in public law proceedings, then there
are going to be cost and resource implications.
(Ms Gieve) Further, there will need be to a balance,
though, in listening to children's voices but at the same time
accepting that, generally speaking, in private law cases it is
the parents who make decisions about children and who help children.
There needs to be a balance, as there probably is in every household,
about to what extent a child's independent voice needs to be taken
account of, and I think it is important that the reporters do
report on what children want. That is very different from saying
that every child needs to be represented in every private law
case and I do not think any practitioners would be advocating
that, but I think what we need to be able to do is identify those
cases where it would be a real benefit to the child from two points
of view: both that their interests are represented but in a proper
case that they have an independent voice of their own and their
own advocacy. I think the task will be, and I know that CAFCASS
and the judges are very involved in this and our organisations
will want to be involved as well, one of identifying those cases
early on where it is going to be useful and necessary for children
to be represented. It will have resource implications but it is
not the same as saying every child in every case.
102. Do you find from the point of view of being
solicitors that there are difficulties you have in representing
different people and being involved in the same case, apart from
the human rights issue and the conflict of interest issue? In
the old days with conveyancing one solicitor could represent both
sides of the transaction and it was not a problem, but then we
overlawyer in many cases. Do you see a conflict of interest problem
as well as a human rights problem?
(Mr Watson-Lee) Obviously if we are acting for the
parent, we may have acted for the parent in the divorce and it
has gone through to the children matters, it is not for us to
see the child ourselves. If we are acting for the parent we cannot.
Often those parents will be competent to tell us what the children
are thinking and what their wishes are, but obviously the children
are clearly influenced by many things and there are many cases
where that child needs to be separately seen. In the run of the
mill case the CAFCASS officer in preparing the report will see
that child separately, but we have been looking, and there is
a joint proposal here by the Law Society, and SFLA and NAGALRO,
at how we define those cases where the children do need to be
separately represented. The list includes when termination of
contact is in issue or where the parents maybe have mental health
problems. There has been a recent Family Law Journal article about
Leeds and what is happening there where the judges are using the
ability to appoint CAFCASS officers direct to represent children.
They have done a bit of research and what they have found is that
in about 7% of cases they feel that it is useful for the child
to have separate representation, but it has got resource implications
and it is very concerning that when they have appointed a CAFCASS
officer to represent the child, because of the delays involved,
they say the average case—and it is not a large sample—is
taking 91 weeks from beginning to end which is the best part of
two years, and that is a resource implication.
Ross Cranston: I think it would be helpful
if we could have that.
Mr Cunningham
103. How big a problem does CAFCASS have with
recruitment and training? You referred to this earlier on.
(Ms Blacklaws) I think one of our concerns is that
there still is no proper package of training, and we understand
that although Royal Holloway is now going to be operating their
training that will not be put into place until the autumn of this
year, some two and a half years after CAFCASS inception. I think
to echo Catherine's point as well we really hope that CAFCASS
will look creatively at bringing back some of the resources they
have lost through the former guardians ad litem, maybe through
mentoring or by having flexible case-by-case contracts so that
they can also assist in the training of the new recruits, because
that was certainly something that took place and was successful
under the old regime—that CAFCASS children's guardians would
pass on their knowledge, experience and information to the newer
recruits—and that is again something that has been effectively
lost to the service at this stage.
104. Is there anything else they could do? You
mentioned they could be more creative and so on but is there anything
else that can be done as well? Do they need more resources? Is
that a problem?
(Ms Blacklaws) One of the problems in recruitment
is obviously that they are fishing in a small pond, and additional
to CAFCASS trying to obtain effectively people from social work
backgrounds, social services as well are looking for the same
people. Clearly, if CAFCASS were able to offer better rates of
remuneration they would be more able to get the more able people
involved, but that is I understand a real difficulty in obtaining
the quality of staff they would wish to have, and the quantity.
Obviously they are under-staffed quite considerably at the present
time.
105. Would that not lead to a situation where
you have competition between CAFCASS and social services because
there is a shortage, as I am sure you know, of social workers
at the moment.
(Ms Blacklaws) Well, that is what is happening. Obviously
when CAFCASS secures a new children's guardian, some local authority
has lost a senior team manager, so unfortunately that is what
is happening right now.
(Ms Gieve) The lesson there is to try and encourage
people into the profession and I think people would be encouraged
to come into the profession when there is more respect in a sense
for the independent judgments they are making. We have talked
about the importance of management and management is clearly very
important, but I think the other thing that is important is a
respect for the independent judgment of the practitioners. Now
it is a very difficult task, the question of bringing people into
the profession, and I am not sure that lawyers are best able to
advise you about that, but clearly that is terribly important
because we suffer enormously from not having good social workers
as well as not having good guardians. In some ways in the past
the guardians made good the defects of the social workers and
now we are faced with not really having either, certainly in big
conurbations.
Mrs Cryer
106. I get the impression you are saying it
is not just CAFCASS not recruiting people with sufficient qualifications
or even retaining good practitioners. Are you saying that, because
of possibly some high profile cases that have given social workers
perhaps a hard time, we are now in a position where social workers
are just not coming through? Well motivated and intelligent men
and women are not going into social work possibly now because
they do not want to have the sort of crap that is being thrown
at social workers by the media, and specifically perhaps the tabloids?
(Ms Gieve) It is tremendously difficult for us to
say anything useful about people coming into the social work profession,
but all I can say is that in practice, and as I say London is
particularly acute because of housing costs and that sort of thing,
there are some boroughs who do not have a good supply of social
workers at all and that makes an enormous difference to the experience
of the child and the quality of the case. It is terribly serious
because not only do you not have good social workers but you do
not have permanent social workers, you have quite a lot of people
on short-term agency contracts and there is a lot of sickness,
so it is very serious and I think we are all clear that when we
say we would like better children's guardians it is not terribly
useful if those better children's guardians take away from local
authorities and the capacity to do work in the first place with
children.
Mr Dawson
107. I am slightly relieved to hear that if
my constituents get rid of me at the next general election there
are plenty of jobs going in social services! Seriously though,
CAFCASS was set up and I suppose one of its principal aims was
to bring services relating to private and public law together.
Plainly it has been through a very difficult period but what scope
do you feel that there is for convergence between guardians and
children and family reporters?
(Ms Gieve) It is terribly important to identify what
the different roles are in private law and public law so that
if and when there is to be convergence there is attention to the
particular tasks involved in those different roles, so if you
are talking about the representation of the child particularly
in public law proceedings either you have experience or there
is training to deal with child protection issues and also the
forensic process. From a career development point of view and
encouraging people into the service from that point of view, therefore,
it is very good to be able to offer a range of different routes,
but from the child's point of view it is very important that people
be trained to the particular task which they are going to follow.
One of the advantages of the various different services coming
together is to look at the whole range of a family's needs, and
the usefulness and importance of looking at the CAFCASS officers
and what they can offer families, for example, at the very beginning
of family breakdown and before things get into contested court
proceedings, and I think we see that as one of the real opportunities.
I know that CAFCASS has been really trying to set itself upright
but I think we all hope we will see in the future a development
of the services early on in family breakdown so that things do
not become so contentious. Again, you are there looking at a range
of skills—skills at helping negotiation, helping mediation—and
what is important in any discussion of the role of officers is
to distinguish what it is they are being asked to do on a particular
occasion, so that when a court reporter is asked to make a recommendation
to the court that is what the court reporter does but when they
are offering an opportunity to the parties to try and discuss
and negotiate and see if accommodation can be reached and when
they are representing their child, that is what they are doing.
So we need to look at the range of tasks. It would be very good
if you could expand the range of services that CAFCASS can offer
both in terms of their own skills and negotiation, for example,
and as a referral point but it is the identification of tasks
that is important.
108. You have covered almost two pages of questions
there!
(Ms Blacklaws) Can I add something to that, though?
I think it needs to be emphasised that CAFCASS need to concentrate
on delivering their core service first which is providing good
quality reports in public and private court proceedings. Once
they have got that then fine, let's look at what other services
or funding of other services they can offer but I would not want—and
I do not think any practitioner would want—their core functions
to be overshadowed or diluted in any way by looking at developing
new support services at this stage. They really need to get their
house in order in the first instance.
109. Is there not a crucial role for those services?
If you have really good mediation services, for instance, that
can hopefully prevent a lot of cases coming to court in the first
place?
(Ms Blacklaws) At this present time CAFCASS has a
crucial role in effective and appropriate sign-posting. CAFCASS
officers need to be really aware of what they have in their locality.
As far as mediation support services and solicitors are concerned,
LCD and LSC research has shown that 80% of people having a family
problem first of all go to see a family lawyer, hence the FAINS
project. So CAFCASS officers with their limited resources at the
present time need to be able to effectively refer on to other
appropriate agencies, and I think that is probably a gap which
could be filled presently.
(Mr Watson-Lee) One has to say one would hope that
once they filled that there is a lot more they can do. One of
the problems I find is that having done their report and maybe
resolved matters so that a court order is made, the parents are
then left on their own, so when the first contacts come along
the CAFCASS officer by that time because of resource implications
has vanished from the picture and moved on to the next case, whilst
having the CAFCASS officer available maybe just to help out sometimes
with the first couple of contacts might help stop that case coming
back at a future time. So if the resources were there I think
there are many areas they can help, for instance at the beginning
they might be able to get in there first to stop the court application
being made, and also at the end although the courts and unfortunately
CAFCASS because of resources at the moment see the order being
made possibly as the end of the matter. For the parents it is
not, it is the next step, but it is difficult to get the CAFCASS
officer involved at that stage because they have moved on and
been given the next workload.
110. Can I ask you about the implications of
Section 122 of the Adoption of Children Act for convergence? Hopefully,
if that is going to be implemented in full and we are going to
see more separate representation of children in private law proceedings,
is that not a strong case for promoting the convergence of the
two services?
(Mr Watson-Lee) I have to say that we discussed this
yesterday. I do not do any public law, just private, so I am quite
keen on convergence because the CAFCASS officers who do the public
law tend to be the more experienced ones because of the more detailed
reports they do, so I would be quite happy to see some of that
experience coming across to the private law work, but I can understand
that those who do public are concerned to keep that experience
where it is probably most needed.
Chairman
111. What is your view of the role of the Legal
Services Commission in this context, and mediation work? If CAFCASS
cannot afford to make it a priority at the moment because it has
to get what you regard as its basic services up and running rather
better, and the Legal Services Commission were to take the view,
as some argue it does, that it is not a priority for them either,
then it falls between the two, does it not?
(Ms Blacklaws) Obviously we have to remember that
they are both funded by the same government department at the
moment, so I think what we would say is that both organisations
need to work with practitioner organisations as well to ensure
that we do have joined-up thinking, that we have cogent decision-making,
that all the bases are covered, and mediation is a very important
part of the provision of services to parents and children. What
we all need to ensure is that we have better outcomes for children
and hopefully some cost savings if this is done in a thought-through
way. Domestic violence or domestic abuse is an example where what
both the Lord Chancellor's Department and the Legal Services Commission
and ourselves are looking at putting in place is a front-loading
of services, so that at the beginning of a family problem all
organisations are working together to ensure that the family and
the children have the proper resources right at the outset with
the belief that obviously this will mean better outcomes for families
but also hopefully less cases coming back to court and cost savings
looking at it as a whole.
112. You implied that you needed cogent decision-making
for this to work, and implied that there was not cogent decision-making.
Who needs to take it in hand to make sure that it is cogent decision-making?
(Ms Blacklaws) I think it has to be working together.
I cannot see that it can be one organisation effectively taking
the lead.
113. Was not CAFCASS supposed to take the lead
in this area? Was that not the idea?
(Ms Blacklaws) Yes, and unfortunately, because of
the difficulties they are having in delivering their core services,
they need in our view to concentrate on that and make sure they
get that right. It is fair to say I think that the Law Society
and other organisations have a very good working relationship
with CAFCASS, and that all parties are working very hard to that
end.
(Ms Gieve) Also there are complex relationships here.
One organisation cannot provide the answer. If you look at issues
of domestic violence, and the particular issue which we have been
concerned with has been domestic violence in the contact, that
does involve different organisations and institutions. One of
the things that has happened, and the President of the Family
Division has been very helpful on this, is outlining the process
that should be followed where there is domestic violence or allegations
of it, but that involves the courts essentially being up to speed,
making the right judgments early on and providing time, as well
as the CAFCASS officers being conscious of those issues being
significant, and then also that you need the proper funding to
fund legal representation. Issues like domestic violence cannot
be answered by just one organisation—it has to be the various
different organisations working together.
114. But this is not just about domestic violence;
it is about all those other cases where there is a difficulty
in resolving matters which is not likely to be helped that much
by getting into court?
(Ms Gieve) There are two points I would like to make
there. One is that I think that getting into court is not always
a bad option and what we find as solicitors is that most cases
parents sort out by themselves, a large number of cases solicitors
sort out between them, but in the remaining cases getting relatively
quickly into court can be very fruitful because it makes people
realise that they are being watched from outside and they have
to think very carefully about what they are doing. What we want
to avoid is those cases coming quickly to court and then progressing
immediately to litigation. The really important service, or one
for CAFCASS to provide is—and different courts have very
good schemes—at that first appointment the availability
of a CAFCASS officer who can help negotiate so that cases that
have come to court with the advantages of framework that that
provides then do not get lost in court. Again, that is a combination
of different people. It involves the solicitors, the courts and
the CAFCASS officers, so I think it is important not to underestimate
the usefulness of the court process where parents are not able
to resolve things, and I am not saying by that that I think that
full-blooded litigation is useful. It is very rarely useful, though
sometimes necessary, but the court process can be useful provided
there are good support services at an early stage. I know a lot
of people say that to keep away from court is the answer but in
my experience that is not true. We very often get a good and sensible
resolution at an early appointment, and sometimes when you are
lucky enough to have a CAFCASS officer who has a bit of time,
that can be really usefully used outside court with the CAFCASS
officer and solicitors, as it were, negotiating with each other
in order to resolve things. So that is a really useful service.
We do want to see CAFCASS develop but not at the expense of its
core services. There are a lot of mediation services so a lot
of it is to do with sign-posting. In a sense, mediation services
are around. I think where we face greater difficulties is in access
to psychological services because some families on breakdown do
not need mediation but psychological help with untangling their
relationships and looking after their children.
Peter Bottomley
115. I think you indicated that in some cases
psychologists were being asked to do work which diverted them
from being available for the kind of thing you are referring to.
Picking up one factual point which comes up at the end of the
submission by the Law Society, it says, "In the continuing
absence of a guardian in the case, despite the solicitor contacting
CAFCASS to seek the appointment of a guardian, and where the solicitor
considers that urgent welfare expertise is required . . . the
solicitor should apply to the court for leave to instruct an expert
social worker or other appropriate expert to provide the necessary
report." When that happens, does the court normally agree?
(Ms Blacklaws) Yes, the court normally does. There
were problems with funding for that approach but those have now
been resolved with the Legal Services Commission and the Legal
Services Commission will fund that expert. Usually that expert
is appointed to undertake a very specific piece of urgent work.
It is one way forward. Another way forward would be to have some
sort of duty scheme whereby children's guardians could be available
in urgent cases to undertake, again, a specific piece of work,
or even just give advice.
116. Presumably, if the court can order that,
CAFCASS itself ought to be able to as well?
(Ms Blacklaws) Yes.
Chairman: Thank you. We are very grateful
for your help and for the submissions which you gave beforehand
which you can see we have taken notice of. Thank you very much.
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