Examination of Witnesses (Questions 120-135)
MS JUDITH
TIMMS OBE, MS
VICKY LEACH
AND MS
CHRIS OSBORNE
TUESDAY 29 APRIL 2003
120. Typically what is happening to these children
in these sorts of cases?
(Ms Timms) They are in a sort of administrative limbo.
They may have been taken away from their biological parents on
emergency protection orders and they are effectively stranded
in the system because without the proper report and the court
hearing which says that the child can be returned home and all
the decisions about who they are going to see during that time,
how much they can see their parents, siblings, grandparents, who
it is safe for them to see, the questions about alleged abuse,
all of those things are on hold so for the period of that time,
from the child's perspective, it is the most appalling situation
because nobody is in a position to tell them who they are even
entitled to see or when they may see their brothers and sisters
or immediate family again. So we do not have enough information
about the situation, or indeed the finite numbers of children
who are involved within those 600 cases waiting, and that is just
in public law. I can say a bit about the private law demand a
bit later.
(Ms Osborne) I would like to reinforce how disturbing
it is for children and young people in that position of drift.
The Children's Society runs a number of children's rights and
advocacy projects where young people often come in to see workers,
and are just finding it incredibly difficult to understand what
is going on. For adults a delay of a couple of weeks is a long
time to wait and a delay of a month or two is a bit much, but
for children it is very hard to accept that they have to wait
for an indefinite period. They want those sorts of decisions about
whether they can see grandparents or parents resolved now. That
kind of delay as a result of bureaucratic difficulties is very
difficult for children who are already in a very troubled situation.
(Ms Leach) I would like to echo what both my colleagues
have said but particularly to ask the Committee to think about
children both in public and private law as being children at risk
and children in need as we understand it. Dealing specifically
with children in public law, the NCH also operate independent
visitor services and youth advocacy services and have the same
experience as The Children's Society. That is deeply worrying
but more disturbing is the number of infants who are removed,
and I can speak as having practised family law—the witnesses
before were former colleagues of mine for many years. The infants
who are removed from their families are drifting in care now to
a point where permanent and effective placement becomes almost
impossible. That compounds—and hopefully we can touch on
the point later—the situation in post adoption or long-term
placement and the difficulties for arranging on-going contact
with natural families which are all part of this whole picture.
It was infinitely better, I have to say, albeit there were defects,
before the three services were unified because each of them in
terms whether the quality of services delivery was good, bad or
indifferent knew what they were supposed to be doing and in the
main got on and did it, and certainly children were far better
served pre CAFCASS in public law and private law.
121. And do you deal primarily with the public
law?
(Ms Leach) It may be helpful to the Committee to identify
where our respective agencies are at this stage.
(Ms Timms) The National Youth Advocacy Service deals
with children in care but is also dealing a great deal now with
children in private law proceedings, some of the ones who are
falling through the net, if you like, who are not obtaining representation
at the moment, and we also have a great deal of history in providing
training to the guardian ad litem panels pre CAFCASS. I myself
was a guardian for ten years. What we are looking at across the
board is a progression that starts sometimes with young people.
When their parents separate a lot of them talk about their problems
starting at the point of parental separation and that can sometimes
start a downhill trend towards reception into care and breakdown
of family relationships, and then once they are in care the problems
that can arise. Part of what we are primarily concerned about
now is that we are puzzled that, given the pressing need for children's
reports to be prepared as a matter of urgency in public law provision
and given that in April 2001 the service inherited 737 self-employed
guardians, we do not really understand why a situation continues
to exist in which certainly in excess of 200 of those very experienced
practitioners have effectively been lost to the service. If you
look at the numbers of cases that those very experienced people
have been able to carry out, and if you relate that to the 600
cases waiting, you can see how some of the problems have arisen.
What is deeply worrying is that two years on, even in spite of
the difficulties with the waiting lists which are well-publicised
now, we still have a situation where I do not think that CAFCASS
is making substantial efforts to look at ways of bringing those
very experienced people back into the service. They have to do
it at both ends; they have to recruit and attract new people into
the profession, they have to grow the workforce for the future,
but there are those people who have felt alienated from the service
and who I believe, and others believe, would be willing to come
back and help in this present situation if approached in the right
way.
Ross Cranston
122. You mentioned that in paragraph 3.7 of
your submission, but what was it? They did not want to be employed?
Was this the problem? They did not like the pay? What was it?
You say there was alienation.
(Ms Timms) Yes. There has been a very strong feeling
right from the inception of CAFCASS that they want to move to
a totally employed model; they want full-time staff to be employed
rather than dipping into a mixture of people—some self-employed,
some fully employed, some working sessionally, etc—and the
bulk of the work in the service in public law proceedings was
carried out by those self-employed guardians who were working
sessionally. Now there has been a complete change in culture to
an emphasis on wanting to have the service staffed by employed
people and I think the economics of this are very questionable.
If you look at the economies of scale in terms of using self-employed
people, I do not think the case has been proved for moving to
a totally employed model. We are aware now that still there are,
if you like, disincentives to using self-employed people. There
appears to be a balance still in favour of always using employed
people first so that we have reports of self-employed people who
are willing to do work who are being told that CAFCASS in certain
regions cannot afford them, because they have to so they cannot
use those self-employed people, and the money somehow does not
seem to be available. I think that is one of the key questions:
what is happening in the way that the money is being put into
the top? Why is it not being filtered down to reach those areas
where it is very much needed and encouraging those self-employed
people to come back in?
(Ms Leach) I would like to add that I was a member
of the group that the guardians were represented on, and I know
we have to draw a line in the sand but, in answer to your question,
in the pre April set-up insufficient attention was paid to discussing
with the guardians what the future would be so it was a bulldozed
fait accompli, to put it crudely, which was "You can
take it or leave it", and the guardians chose to leave it
at that time. You will be aware of proceedings since so it is
not just about money but about treating these professionals who
served children in public law very well over many years with the
respect they deserve—not telling them that they will just
put up and shape up but to negotiate with them as sensible professional
adults which is not what has been done so far.
123. But your impression is that they could
be brought back?
(Ms Timms) I think a certain proportion of them may
be brought back if there was a proper initiative and if they were
able to function, as I have said in my submission, as independent
professionals in the way that they feel their job is. You have
to make it clear that although they are employed by CAFCASS they
are accountable to the court directly for the professional decisions
they make, and they appear in front of the court as independent
expert witnesses so they have to be people of a certain seniority
and they have to satisfy the court as to their competence. So
you can see that you have a potential conflict between their position
as employed people within CAFCASS but their direct professional
accountability is to the court, and I think that is something
that has not been fully understood by the management of CAFCASS—that
they are in a unique role in that sense amongst social services
personnel.
124. Yes. This comes out in your submission
and you refer to common law and so on. In fact, I agreed with
my colleagues not to ask about that but about the corporate priorities
and the budget and so on and in a way I do this as a devil's advocate—Methodists
beware, although I point out to the Chairman that I come from
a primitive not the Wesleyan tradition! You make a lot of this
and as the devil's advocate can I put to you that in terms of
budget there are limited resources; it is not an ideal world;
it is not a situation where we can provide a first class service
unfortunately. We had evidence, for example, from the head of
CAFCASS Legal who said, "CAFCASS must have regard to its
responsibility to meet the needs of all children and families
involved in both public and private law proceedings out of a finite
budget. It is no good providing the best possible service to one
child if it means providing a less than adequate service for a
number of others". How do you respond to that? Also, when
you talk in your submission, Ms Timms, and also it comes out in
the NCH submission, of corporate priorities and almost not putting
children first, where is the evidence, as it were?
(Ms Osborne) Can I pick up on a point that related
to something you said earlier? I think the flexible economy of
both employed and self-employed guardians really does serve children
best. The Humberside panel that The Children's Society managed
for many years had that kind of balance, and I would just like
to make the point that that opportunity to have a wider selection
of guardians to choose from does mean that the kind of special
needs of some children can be more sensibly met. If you have children
speaking particular languages or disabled children with particular
communication methods, that kind of flexibility is crucial to
serve children well.
(Ms Timms) Coming back to your first question, it
is a question of how you allocate that resource, and I agree resources
are not infinite but what do you do? The indications at the moment
are that CAFCASS are thinking that they may spread the resources
and have a guardian appointed at the first appointment, and then
the guardian may disappear and be allocated to other cases because
they are having to take many more cases than in the past, and
the pressure is on them to do so, and then they keep popping up
and down in that child's life rather than being, as demanded by
the court rules, a constant presence through that period of the
court proceedings. You have to make a choice about whether you
protect children adequately, and there is no such thing as half
protection really. You cannot spread the butter that thinly. If
you spread it too thinly you do not protect any of the children,
so I would suggest that you have to make a decision about saying,
"The children that we are protecting we are protecting to
the best of our ability, and child protection is an absolute".
A guardian working in that situation has to, by law, cover all
the eventualities and they have to do as thorough job as they
can. If they went into court and said to the judge, "Well,
I have not seen the putative father", or "I have not
seen these grandparents because I am aware that we have to spread
these scant resources so I have not checked up on that aspect
of the risk", then I do not think the judges would be very
impressed and it would not be very good for the child. So it is
a question about trying to get the experienced practitioners who
can work very thoroughly on each case that they have but, at the
same time, working towards getting as many guardians as we need
rather than, I would suggest, spreading it more thinly amongst
all the children at the moment. We cannot do that; you will end
up with a lot of children who are not being adequately protected,
and that is so deeply worrying to the guardians who are being
put under pressure to work in that way that they will leave the
service because, professionally and in terms of their own personal
integrity, you cannot sleep at night. You have to be able to do
the job properly.
125. Again, playing the devil's advocate, you
mentioned the situation where a child may have been taken and
is in care. There is an issue of uncertainty but at least the
child is protected, as it were. There is a delay, there is uncertainty,
but at least there is protection.
(Ms Timms) I think we know from inquiries that sometimes
children are not as well protected in care as they should be.
I believe the president mentioned last week the NSPCC research
about the abuse of 706 children in care which it has just been
involved in. You can see from there that they are saying that
the decisions which were made early on about the lack of contact
with friends and family has been deeply damaging and is a matter
every day for them of profound distress and concern. I think it
would be over-optimistic to think that they are in a safe position
in care. It would be nice to think that but the very fact that
you are moving children to a totally different situation and sending
them to a different school is deeply traumatic.
126. There has been a budgetary increase. Does
this budgetary increase give you any sort of comfort?
(Ms Timms) As long as it goes to the coalface; as
long as it goes to the practitioners. There are also implications
that it is becoming quite an over-managed service in terms of
the ratio of management staff to practitioners, which has increased
considerably. That may be a question that the Committee would
want to pursue with CAFCASS itself, but I think there are certainly
implications that the proportion of managers to practitioners
has increased very considerably. We would like to see the money
being allocated to the practitioners.
Chairman
127. Ms Timms, you obviously have some concerns
about management in a professional service of this kind, because
your submission does not just hint at but makes some quite clear
comments about professionals having to answer to managers about
the amount of time they spend on dealing with an individual case
or preparing an individual report. You seem to be of the view
that the ethos of the professional without cost limit—simply
doing what appears to be necessary in that case—is what
you have to have in dealing with this sort of work, and that the
whole management structure acts against that.
(Ms Timms) No. I hope I have not given the wrong impression
there. We must differentiate between the proper, professional
discretion and accountability of the guardian, or indeed any social
worker professional acting in the courts, and the need to be accountable
in terms of the public money that is being spent on the service.
I think the "light touch" management which actually
did exist much more pre-CAFCASS facilitated matters. What we need
is a tight management which manages budgets and facilitates the
proper exercise of professional discretion. I must emphasise that
I do not say that we want lots of people running around without
proper professional accountability or responsibility for public
budgets. I think what you have to look at here is the difference
pre- and post-CAFCASS in terms of the management structure which
did, in spite of deficiencies in some areas, very effectively
facilitate the practitioner using their professional discretion
whilst being properly accountable for what I may call the pay
and rations aspects of the service. There is within CAFCASS very
much a need for proper professional development of forum for the
discussion of professional issues. You do need to have managers
who are keeping an eye on the budget, and all practitioners have
to be properly accountable. What I am worried about is a management
structure which inhibits the proper exercise of professional discretion
rather than facilitates it. That is a worry, because then it makes
it a very counter-productive, non-cost-effective service.
(Ms Leach) I would like to echo that. NCH and the
Children's Society have experienced managing guardian panels pre-CAFCASS,
and guardians are not the most difficult people to manage. It
is possible to achieve both effective management and proper case
management. I would, if I could, like to go back to part of Mr
Cranston's question as it relates to finite resources and ask
you, perhaps, to widen the picture because there is the issue
of CAFCASS resources, there is the issue of the Legal Services
Commission's resources, the Lord Chancellor's Department's resources,
and there are then the resources of all the ministries—and
there are a number—who have responsibility for the welfare
and well-being of children. Within public and private law, with
these children at risk and in need, a social problem can pop up
needing the services of various other departments. The Lord Chancellor's
Department has made strenuous efforts to curb the spending on
what is known as civil legal aid, in which falls family and children.
If you are to limit the services or abilities of an agency like
CAFCASS you are automatically increasing civil legal aid bills,
so it is falling somewhere. If children are removed from their
families and placed in care, the multiple negative consequences
in their social, emotional, psychological development will mean
that a ministry somewhere is going to be picking up that bill.
So it is simplistic to look at this in a very narrow vein of what
CAFCASS should or should not be doing. I think it would be helpful,
perhaps, to define what it should be doing, so at least there
is clarity about that.
Ross Cranston
128. The trouble is Government does not work
like that.
(Ms Timms) I am aware of that.
129. I have asked the previous people about
the increased demands by human rights and so on, and you have
both made a point of that in your submissions. Can I just press
you? You make this point, Vicky, about the private side and the
need for separate representation. I was struck by the fact that
Mr Watson-Lees said that only 7% of cases, in their assessment,
needed that separate representation. What is your view of that?
(Ms Leach) NCH, as the largest providers of support
services for children and their parents in family transition,
including conflict resolution services, and in Public Law. We
know from the children and families that we are working with that
as people become more and more stuck in the conflicted area of
litigation the more the need is for children to be represented
in private law proceedings. We are not saying that every child
needs to be represented, but our estimate would be far higher
and probably around 20%, and growing. Litigation is growing and
not diminishing.
130. Who is driving that? Are solicitors driving
that up?
(Ms Leach) I think it is not one single thing, it
is a combination of things. When people feel damaged, challenged
and vengeful they want judgment. Unfortunately, the judgment is
not often helpful to the management of family transition. I think
that because there are not enough preventative resources litigation
continually increases and will do so until we manage family transition
as a process not an event, and understand that heading people
off with a quick negotiation at the beginning is not likely to
assist them to manage their future parenting down the road. There
have to be services in which they can ventilate issues that are
not generally capable of being addressed or resolved by litigation.
Litigation is a forum in which many battles are acted out, not
just the subject matter of the proceedings. I think it will increase.
That is all the evidence we have.
(Ms Osborne) I would like to echo Vicky's point about
it being a process. For children and young people, the decisions
that might be made even through the courts early on in their period
of separation from their natural families, perhaps, their views
about what they might want to happen in terms of contact may well
change over time. So that kind of importance on support services
being made available over a period of time is absolutely crucial
for children and young people.
131. Family lawyers seem to be arguing for front-end
loading.
(Ms Osborne) I think that is important, to try and
get the best possible decisions and opportunity for children to
have their view and express their feelings about those decisions
early on. However, I do think there needs to be other services
that provide an opportunity for children to come back to as times
change and as their needs change later on. A decision that is
taken about contact for a child when they are 7, 8 and 9 may look
very different to that child when they are 13, 14 and 15. It is
at that stage, for instance, through some of the research that
the Children's Society has done with young runaways, that we are
finding that children living in stepfamilies, particularly, are
vulnerable for running away. It is those decisions later on that
I think also need to be taken account of.
Mrs Cryer
132. My job is to ask you about recruitment
and training, but we have already dealt with it quite a lot, actually.
I think Judith did mention that she had been involved with the
training of guardians pre-CAFCASS, so you must have a fair idea
of what is needed in the training of guardians. I think you also
mentioned that you felt that the choices had been narrowed down
too much and that CAFCASS now wanted purely employed people rather
than dipping into a pool of self-employed people. I think that
is what you said. It sounds to me as if that boils down to management
problems. I know you suggested that there may be too many chiefs
and not enough indians—too many managers and not enough
practitioners. What I would like to know is why 200 guardians
were lost to the service and why were they "alienated"?
That was the word you used—alienation. I just wondered why
that was the case. Does it boil down to the fact that they were
not allowed to be self-employed, or does it boil down to faulty
management? Does it boil down to a lack of in-service training?
I wondered if any of you wanted to say anything about recruitment
and training and as to what the shortcomings are on both these
aspects. We are told by the Solicitors Family Law Association—and
I am getting quite worried about all of this actually—that
anecdotally CAFCASS has an ageing workforce. As more people approach
retirement age and other more experienced members of the original
CAFCASS pool leave the profession the situation is therefore set
to worsen. Since we seem to be in a difficulty with long waiting
periods for quite young children to have their lives sorted out,
I really am very worried that we are going to lose a lot more
of these experienced people. The Law Society mentioned, and this
may sound trivial but it could have an impact on the outcome of
the deliberations of a court, "We are concerned to hear from
our members and others reports of insufficient preparation of
new recruits for their role in report writing". If they are
doing an inadequate report for the court, the court is not—no
matter how good their work has been—going to be aware of
that.
(Ms Timms) I certainly think you are right to be concerned
about this. There were training programmes which were in place
pre-CAFCASS and post-CAFCASS that has been very, very slow. In
the first two years there has been very, very little training.
One of our worries about the training (the so-called convergence
training that Mr Dawson mentioned) is that while it is going to
be very good to have a workforce which can do both sorts of work,
public and private law proceedings, what would be very bad and
what we are getting increasingly worried about is the conflation
of the two roles between the family court reporter and the guardian
role. Basically, the family court reporter role—the people
who do the Section 7 welfare reports—are reporters but not
representatives of children. It is a reactive role, it is not
a pro-active role in the way that the guardian has many more statutory
powers in terms of case management. They can subpoena additional
expert witnesses, they can instruct solicitors directly. What
we are worried about now is we see adverts going out for family
court advisers and they are being recruited at what would not
be, I think, what the British Association of Social Workers would
say in their submission is a sufficiently senior level of remuneration;
they are recruiting at the bottom end of the scale, in other words.
What we are worried about is the dumbing-down of the role rather
than a skilling-up. So that while we need to be clear with the
training that people are trained in the different modules of the
role—ie, there is nothing to stop people being a very competent
family court reporter in Section 7 private law proceedings and
doing guardian work, and I know many people do—however,
what we must not do is say "Right, we are going to conflate
this all into a three-day, crash course which is going to equip
you to do both." That is our fear about what is happening.
Within that we have seen worrying indications from CAFCASS also
that they are blurring the boundaries of the role between reporting
and representing. That is not going to be in the interests of
children, because there are clear statutory guidelines and court
rules about that. To pick up on the training implications and
the human rights' implications in terms of the additional implications
of Section 122 of the Adoption of Children Act, to put this in
perspective, the increased workload will be very considerable.
I have asked some questions of LCD about how many children are
currently represented in private law proceedings under the existing
court rule 9(5) and it is something between 130 and 140 children
a year only. If we look at the numbers of Section 7 reports that
are done, it is about 32,000, and we know that a good proportion
of those children will probably go on to need representation.
So we can do an assessment that we are looking, certainly, at
10,000 more cases a year possibly, who may be considered for representation
than is currently the case. We are dependent on identifying those
children on the skill of those family court reporters who are
picking up the welfare issues and then saying to the Court "Here
is a child who is at risk from domestic violence, alleged abuse
or other factors, and this child may need to go on and have a
guardian and have a representative." So it is not either/or,
it is an incremental part of the process. In terms of cost-effectiveness,
if you go right to the beginning of that process, NYAS has certainly
found that early legal advice is much more effective and cost-effective
for everybody concerned than late legal intervention. So we are
looking to CAFCASS's "S" on support to provide those
early information links with mediation services to do a diversion
exercise early on, so that you get the right children—the
ones that you really need to be concerned about—being the
ones who are represented. All of that system has to fit together,
and at the moment there is no coherent, professional framework
which is informing the management system within CAFCASS about
that.
Mr Dawson
133. That is compelling evidence. Can you tell
me, is there a good model for convergence of these services that
could be applied by CAFCASS?
(Ms Timms) Yes, we can have modular training which
can say "Right, this is your role as a family court reporter."
People may then want or wish to mix and match, you can be both
a guardian and a family court reporter but there has got to be
accreditation in each module." What you do not want is one
merged module which blurs the boundaries of the roles, and which
will give people very considerable problems with the existing
court rules.
134. Previously we have heard you, again compellingly,
talk about the very "light touch" management that is
needed by the most experienced and respected part of the child
care social work workforce. How does that marry with the needs
of the unified service and, perhaps, a service which is encouraging
a progression of skills through the various levels of CAFCASS?
(Ms Timms) That is the frustration, because we have
got the right framework; CAFCASS is the right framework to do
that. The amalgamation of the three services we all welcomed as
a framework within which that could be developed, working from
the information services through consultation with children to
reporting on their welfare needs up to representation if they
needed it. We saw that as a framework for the development of the
spectrum of service—which is still there. That is why, I
suppose, we are all here today because we are saying "Look,
the vision is right but it is going badly wrong and this may be
the last opportunity to turn it round."
(Ms Leach) Can I revert to just the training and skills,
because there is an important difference, particularly as it relates
to representation of children. In order to represent children
one has to be able to communicate and engage with them, so there
is an issue of time and cost. There is also the issue of skills.
Guardians because of their backgrounds are extremely skilled.
Many, as were, family court welfare officers are very skilled
but many are not and have never had any form of training in child
development, communication skills with children or direct work
with children. That still persists and that is a massive training
gap. The people that are supposed to be reflecting to the Court
a child's views, wishes and feelings are not well-placed to elicit
them, and that is something that is not being attended to on a
continuing basis.
135. That is training which is required universally,
across anyone working in any aspect of CAFCASS?
(Ms Leach) Yes.
Chairman: Thank you very much indeed.
We are very grateful to you for the evidence you have given to
us this morning
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