House of Commons - Committee on the Lord Chancellor's Department

Select Committee on Committee on the Lord Chancellor's Department Third Report

5 Current situation

58. This chapter of our Report examines the consequences of the failures of CAFCASS's early days, and considers the extent to which the organisation is still suffering from them.

Failures in service provision

59. MCSI's first report on CAFCASS, Setting Up, concluded that, despite all the difficulties which were experienced in the early months, front-line services had to a very large extent been maintained.[85] Despite that finding, however, concern grew about delays in the allocation of CAFCASS officers to cases, particularly in public law. By the time of our inquiry, those delays were the main focus of concern amongst witnesses.[86]

60. Delay almost always undermines the welfare of children and the rights of parents and children: a fact recognised in the "no delay" principle underpinning the Children Act. The passage of months whilst decisions are made represents a substantial proportion of their lives. While this process continues, children may be deeply distressed by the fact that they are living in an unfamiliar environment and denied contact with parents, grandparents, brothers or sisters.[87] The courts recognise the importance of stability to children by frequently making decisions which reflect the status quo. Therefore delay not only impacts on children's day to day relationships, but also reduces the options available to the courts and risks parents' and children's rights to establish family life together.

61. The precise extent of delay in allocation occurring before the establishment of CAFCASS is not known.[88] Information on case allocation by the pre-existing guardian panels was not centrally collected. However, it can be said that whilst there were some delays in some areas, in others a guardian was typically appointed within 24 hours.[89]

62. The contrast with the situation post-CAFCASS could hardly be greater. Figures provided by the Law Society suggested that, in public law cases, by the time of our inquiry average waiting times for the appointment of a children's guardian were around five working weeks.[90] Recent figures for unallocated cases, supplied to us by CAFCASS, are as follows:[91]

March April May

Public law[92] 639 576 602

Private law[93] 365 418 399

It is true that these figures conceal significant regional variations. In some places, there are no significant delays, and the service being provided by CAFCASS is as good as that which was provided by its predecessor service.[94] In others, however—inner London, for example—delays have reached wholly unacceptable levels.[95]

63. The position in private law does not show such a marked deterioration as that in public law; but this is mainly because the pre-CAFCASS situation was already unsatisfactory. Representatives from the Law Society told us that there had been little or no improvement from the position under the old Family Court Welfare Service, where reports would typically take some twelve weeks to complete, and that in some cases the position had got worse.[96]

Reasons for delay

64. As noted by the Minister in her most recent memorandum, the reasons for delay in allocation are complex.[97] There is undoubtedly a higher level of demand than was faced by those services which existed pre-CAFCASS. CAFCASS has recorded a particular increase in care case requests, those cases being the more complex in occurring in public law. There is also an issue concerning the wide variations in the amount of time individual practitioners spend on any one case, which affects the number of cases a practitioner can take in total.[98] The bottom line, however, as the Chief Executive eventually acknowledged,[99] is that CAFCASS has not had sufficient staff resources to cope with the demand it has faced.[100]

65. Again, the reasons for this lack of resources are not straightforward. CAFCASS has been hit by the general shortage of experienced social work staff which is affecting local authority social services departments across the country.[101] Recruitment has not been easy. Furthermore, the dispute with self-employed guardians resulted in a moratorium on recruitment (so as not to prejudice the position of the guardians) whilst the dispute was resolved, thus preventing CAFCASS from bringing more people in for a period of some months early in its existence.

66. However, the increase in demand—which did not start post-CAFCASS[102] and should have been anticipated—and the shortage of appropriately qualified staff made it all the more important that CAFCASS hold on to the staff it was inheriting. The protracted dispute damaged relations with experienced guardians and staff the organisation desperately needed in order properly to fulfil one of its core functions. Key front-line practitioners were lost.[103]

CAFCASS Legal

67. Concerns have also been expressed about the work of CAFCASS Legal. The head of this part of CAFCASS seems to be widely held in very high regard.[104] Nonetheless CAFCASS Legal appears to be suffering from the same lack of staff as is affecting other parts of CAFCASS. A number of witnesses reported to us that CAFCASS Legal now seemed unable to take on cases which its predecessor, the Children's Division of the Official Solicitor, would have been expected to handle.[105] The President of the Family Division expressed concern that CAFCASS Legal was both "seriously under-resourced for lawyers" and "very short of case workers."[106]

Lowering of standards for recruitment

68. Once CAFCASS was able to start recruiting again, it reacted to the shortage of available staff by lowering the required level of experience from 5 years to three. A number of witnesses expressed concern to us about this, arguing that there was evidence of a lowering of standards of work and, in some cases, a failure on the part of new guardians to understand what role they ought properly to be playing in proceedings.[107] CAFCASS itself denied that there was any lowering of standards, and the representatives of the judiciary who appeared before us mostly considered that the standard of work they saw was as good as it had ever been.[108] Representatives of the CAFCASS Managers Association were also at pains to defend the quality of work done by their staff, even new recruits.[109] However, one of the representatives of the judiciary, Judge Crichton from the Inner London Family Proceedings Court, suggested that he was now seeing some work of an unacceptable standard.[110] There were also reports from some lawyers who work closely with children's guardians of new guardians who were not fully aware of the proper role to be played by a children's guardian.[111] Some of these instances may have been the result of CAFCASS finding itself obliged to resort to the use of agency staff to try to tackle the growing crisis in allocation of guardians in London.[112]

Training

69. The evidence we have received suggests that lower standards of work, where they occur, are due as much to the lack of training and professional development in CAFCASS as to inappropriate recruitment.[113] A lack of a properly structured and quality-assured training programme, or of any organised professional development activity, was a common complaint in evidence, particularly that coming from guardians.[114]

70. Pre-CAFCASS, guardians could expect regular sessions of training and professional development.[115] Panel Committees were responsible for overseeing the training of panel members.[116] Panel managers and panel members arranged induction training for new guardians, including shadowing experienced practitioners, guardians held regular professional meetings to provide mutual advice and support, and seminars were organised on specific topics often involving social workers and lawyers and other professionals.[117] Guardian panels would often pay self-employed guardians to attend such events. Family court welfare officers employed by the Probation Service also enjoyed organised training and development. They could have expected a period of induction training on moving into court welfare work, regular supervision from the Senior Family Court Welfare Officer, and team-based and regional staff development exercises. Many court welfare teams used a variety of methods of working together with colleagues to monitor and improve their skills, usually with the aim of updating each other and developing best practice.

71. Yet even pre-existing arrangements have not been continued. A memorandum from a group of self-employed guardians in the south-west of England compares the situation pre-CAFCASS with that which obtains now:

Until April 2002 there was a great deal of professional support and structure in place for self-employed guardians in our area to keep our practice safe. The emphasis was on developing professional judgement. Since Cafcass took over the service the emphasis for practitioners has been on meeting organisational demands. Now, we only have Business Meetings once every two months, and these meetings do not address professional issues or facilitate case discussion. We used to have monthly Professional Development Meetings but these meetings are no longer available. There has been minimal effort to get self-employed and employed Guardians harmonised with one another and together to discuss professional issues. Liaison between old and new Guardians is not properly facilitated [and] therefore does not happen, resulting in previous practice and experience not being shared and built upon between old and new Guardians, creating a great divide …[118]

Only during our questioning of the Chief Executive did it emerge that self-employed guardians were finally to be granted access to the CAFCASS intranet.[119] We have even been told that CAFCASS management has attempted to discourage use amongst CAFCASS practitioners of an e-mail 'smartgroup' which has been operating as a forum for good practice, exchange of information and professional development.[120] The short-sightedness of such an attitude is self-evident.

Consequences of the lack of training

72. One of the consequences of the failure to provide proper training was the poor preparation of new recruits for their role, which we discuss above.[121] Another was the reinforcement of the impression that CAFCASS as an organisation did not value its professional practitioners. The following comment, from Ms K Butcher, a children's guardian, is typical:

The loss of quality is underpinned by the lack of training, appraisals and learning from each other within the organisation. As a self-employed Guardian I am not expected to contribute to the development of the service. My expertise is under valued and under used…[122]

73. The consequences are not confined to individual CAFCASS practitioners. The training and professional development of CAFCASS practitioners is a vital part of the development and improvement of the service given to children and the courts. Evidence from court users, notably non-resident parents groups and those representing women who have suffered from domestic violence, emphasised the importance to CAFCASS officers of a proper understanding of the context within which they are working, and full awareness of the relevant research.[123] If this is not the case, vulnerable children may suffer too.

Convergence

74. Particular concerns were expressed in this context about 'convergence', i.e. the process of enabling children's guardians to do the work of family court welfare officers, and vice versa. The original intention of CAFCASS was to bring together the work in public and private law, in order to achieve both efficiency savings and cross-fertilisation of ideas.[124] However, while many of the skills are transferable, the tasks of representing and reporting are substantially different and require specialist areas of knowledge.[125] Children's guardians and others expressed considerable concern about convergence and the failure of CAFCASS properly to appreciate the difference between the respective roles.[126] The children's guardian Veronica Swenson, for example, says,

The latest attempt at an 'Induction Training Course' fails to distinguish between the discrete functions of robust independent scrutiny (identifying and protecting children's interests) and of helping parties move toward agreement (settling adults' disputes). This typifies the confused, bungling way in which CAFCASS conflates professional roles…[127]

75. CAFCASS appears not to have taken sufficient account of these concerns. There has been very little development of training to enable the two strands of professionals to develop the skills needed to undertake both sides of the work.[128] Indeed, until recently there has been virtually no development of training of any kind. Yet CAFCASS is already advertising for the recruitment of generic "family court advisers", who will be expected to undertake both roles, and issuing "harmonised" contracts to existing staff.[129] As Joan Hunt of Oxford University points out in her discussion of the desire to make progress on convergence, "it [is] very clear that a substantial programme of training and support [is] absolutely vital… It is doubtful whether Cafcass is in a position to do this properly at the moment."[130]

Performance management and appraisal

76. An associated issue is that of performance management and appraisal. One of the reasons for the establishment of CAFCASS was the feeling that the pre-existing guardian panels were able to exercise insufficient control over the cost-effectiveness and value for money offered by guardians in their area.[131] CAFCASS appears to have responded to that concern not by strengthening the appraisal system, but by attempting to impose what were seen as rigid constraints on the work guardians can do on a case (as detailed elsewhere in this Report[132]). In the meantime, the system of professional support and performance management has disappeared.[133] It may be that this is in some measure due to the fact that front-line team managers, who might be expected to carry out appropriate appraisal of the work of the practitioners they manage, are too busy to be able to do so.[134] Other witnesses suggested that many front-line managers simply do not have the public law expertise to be able to make the judgements required.[135] Front-line practitioners very much regret the lack of professional support which CAFCASS is offering them.

Information Technology

77. The conclusion of MCSI in its first report on CAFCASS, Setting Up, was that "IT was a CAFCASS success story."[136] The experience of CAFCASS staff working with the existing systems, however, does not appear to concur with that conclusion.

78. CAFCASS's main failure in respect of IT is the lack of a case management system. The need for such a system, which would enable the collection and retrieval of up-to-date information on cases with which CAFCASS is involved, was identified early on in the planning for the establishment of CAFCASS. At setup, a large sum of money—some £6m, we were told—was provided for the development of IT systems in CAFCASS. We were told that work on a case management system had begun during the pre-CAFCASS period,[137] but that it had stopped shortly after CAFCASS was formally established because the project managers feared that it would fall prey to the same problems which have beset many other public sector IT projects.[138] It is not clear what then happened to the money which had been provided for the establishment of the system.[139]

79. Since work on the project was halted, minimal progress has been made on the development of appropriate IT systems. New hardware has been delivered to offices, and is used for word processing, e-mail and other office applications. Crucially, however, there is still no software available which will enable this new hardware to manage and share information about live cases. Instead, staff are still working with the different legacy systems inherited from the previous services. Information thus has to be laboriously transferred from one system to another to provide statistics demanded by management. Not only does this result in large amounts of extra work having to be done by front-line management and administrative staff, but questions also have to be raised about the robustness of the information received in this way by regional and national management. Even if mistakes are not made, there can be no guarantee that the information is sufficiently up-to-date for the purposes required.[140]

80. A further consequence of the failure to establish an appropriate case management system is CAFCASS's inability to collect information for research and evaluation purposes.[141] The information collected on the legacy systems is, in most cases, very basic. It does not, for instance, enable information to be gathered on repeat litigation: whether parties come back to court again after one set of proceedings has been completed, how many times they do so, and how long after the original proceedings. Information such as this could be used to judge the success or otherwise of different approaches to dealing with private law disputes. We describe below the importance of research in this area of work, and the lack of it.[142] Yet two years of potentially valuable data relating to practice have been lost because no appropriate means of collecting them have been developed.[143] This is a major missed opportunity.

Support services

81. There were high hopes when CAFCASS was created that it would provide new services to support the courts, especially in private law cases. Such services might include contact centres, mediation, parent education, and other support services for parents and children post-separation and divorce. Considerable play was made of the inclusion of an additional 'S' in the CAFCASS acronym that added the support function to its title.

82. A Report prepared last year by the LCD's Advisory Board on Family Law: Children Act Sub-Committee, Making Contact Work, saw an expanded CAFCASS as of "critical importance" to the development of additional support services for families suffering breakdown. The report suggested that if CAFCASS could achieve this role there would be not only improved outcomes for the families concerned, but also significant savings in time and money to the family court system.[144] Witnesses to our inquiry have echoed comments about the vital role which CAFCASS could and should play outside the formal court processes.[145]

83. The evidence we have received, however, suggests that CAFCASS is very far from getting to grips with the central role envisaged for it in Making Contact Work. Considerable disappointment is expressed that such support services have not been provided and that even existing measures, such as family assistance orders, are seldom recommended or used because of resource considerations.[146] The main reason for this failure is that CAFCASS quite simply does not have enough staff resources to be able to cope with such an expansion of its role. However, evidence also suggested that CAFCASS is in a poor position to develop support services and has no clear policy about such developments, reflecting uncertainty about the role and function of CAFCASS in relation to this aspect of its remit.[147] CAFCASS's strategic role in the provision of support services was not clear: the question of whether it or the LCD was best placed to play the coordinating role in the development of such services was never satisfactorily answered.

Partnership funding

84. Currently, CAFCASS's main contribution to additional support services comes through the £1.1m (slightly more than 1% of its total budget) which it provides in "partnership funding" for other organisations, chiefly those who provide contact centres and mediation services.[148] CAFCASS has recently announced a decision to "rebalance" that money so that more of it goes to contact centres, and less to mediation services (which, it argues, receive substantial funding from elsewhere).[149] This decision suggests that CAFCASS feels a need to focus quite narrowly on 'in-court' conciliation work and the funding of contact centres, leaving the development of wider support work to others.

85. This may be an understandable position to take in the short term, and defensible on its own terms.[150] Nevertheless the decision to reduce funding for mediation rather seems to contrast with CAFCASS's stated belief that "the best interests of children may be better served, in private law cases, by taking more action to avoid cases coming to … court".[151] Contact centres, although very necessary and valuable, can of course only deal with the effects of arrangements that have already been made, either through court or independently; unlike mediation services, they cannot prevent cases coming to court in the first place.

86. Fears have also been expressed that the withdrawal of CAFCASS funding from not-for-profit mediation services will result in the loss of some of those services altogether.[152] Whether that is the case or not—and notwithstanding the satisfaction with which the decision will doubtless have been received by those representing contact centres, many of which are run on a shoestring—the decision comes as a great disappointment to those who saw CAFCASS as a major developer of a range of support services for families experiencing breakdown.

Effect of LCD's PSA targets

87. We note in passing that the LCD has as one of its PSA targets "to increase the level of contact between children and non-resident parents, where that is in the best interests of the child." We express elsewhere in this Report concerns about the relationship between LCD and CAFCASS.[153] There is speculation that CAFCASS has felt the need to focus on child contact because that may be the only way the Department can meet its targets. If true, this would indicate a degree of short-sightedness on the part of both LCD and CAFCASS, which we hope will not be replicated by the DfES.

Relations with the Legal Services Commission

88. Relations with the Legal Services Commission (LSC) are crucial in the context of development of support services. The LSC occasionally funds assessments for contact and funds contracted mediation providers by paying for mediation for those who qualify for public funding (i.e. on a means tested basis). It is also running a pilot project, FAInS (Family Advice and Information Services), which is designed to ensure access to tailored information and advice for those who are contemplating or who have decided on separation or divorce. There is therefore an important link between the work of the two organisations.

89. There is little evidence that CAFCASS and the Legal Services Commission have so far been working together in partnership to ensure a coordinated approach to the provision of appropriate services. A number of comments from CAFCASS's recent review of its partnership arrangements with other organisations serve to illustrate the approach which appears to be being taken:

LSC views contact centre funding as largely CAFCASS business…

Some CAFCASS managers have expressed anxiety over possible 'double funding' of mediation, given inherited arrangements and the relatively large sums now provided by the LSC and want CAFCASS mediation funding reviewed.

One of the difficulties in ensuring value for money when contracting with child contact centres and mediation services is that funding frequently works to support or subsidise other referrers and there is not a direct benefit to CAFCASS……solicitors typically make 50% or more of contact centre referrals.[154]

90. In particular, considerable cooperation might have been expected between the two organisations on the FAInS project. Yet the "bidding document" which preceded the establishment of that project made no mention of CAFCASS, despite CAFCASS's key role in this area. Para 5.5 of the LSC's memorandum makes it clear that LSC do not propose to involve CAFCASS directly in the FAInS project.[155] As the memorandum from Parentline Plus and the National Council for One Parent Families, for example, points out, "it is vital that CAFCASS employees are able to signpost parents and families onto appropriate national and locally based sources of information, help and support."[156] Working with families who are likely to make use of such information services is central to CAFCASS's raison d'être.

Relations with other organisations

91. Evidence from Napo, one of the trade unions representing CAFCASS staff, suggested a certain amount of difficulty was being experienced by CAFCASS practitioners in accessing information from other agencies about individuals involved in proceedings. A survey of 60 practitioners, in which each was asked to report on their last five cases, found that "whilst the vast majority of the respondents were able to access data fairly quickly and easily, there were 74 instances where difficulties were experienced with one of more of the key departments." They concluded that "these difficulties with other agencies underline a need for national protocols to be developed."[157]

92. These are important findings, albeit based on a relatively small sample. Perhaps more seriously, the CAFCASS Managers Association suggested that many front-line managers were having to withdraw from liaison arrangements with, for example, the courts and local authorities, through simple pressure of overwork.[158] As well as potentially contributing to the problems of data-sharing described by Napo—good working relationships need commitment on both sides—such withdrawal bodes ill for the inter-agency cooperation which is essential in the context of child protection, as the Victoria Climbié inquiry has most recently stressed. Full involvement by all concerned, CAFCASS staff included, in inter-agency initiatives and joint working is essential if disasters such as the Victoria Climbié affair are to be avoided in future.

Research and improving practice

93. The formation of a unified service should have provided the opportunity for a concerted effort on the part of those working in the family justice system to develop a strategy for addressing some important unanswered questions about "what works" for children following family breakdown. As with so many other areas, however, it is an opportunity which CAFCASS has not yet managed to grasp.

94. MCSI's latest report on CAFCASS says:

Given the relative paucity of research in recent years into areas covered by CAFCASS, a great deal of catching up is needed. MCSI believes that CAFCASS needs to develop a strategy for knowledge accrual, including research, focusing on the 'what works' approach to family proceedings related work. This should include establishing clear links with relevant research foundations such as, for example, Nuffield, Rowntree and the Economic and Social Research Council (ESRC), as well as university based researchers and research units in the central Government departments.[159]

This conclusion elicited from CAFCASS itself the rather weak response, "We will ensure practice is evidence based and supported by a strategy for research, best practice and quality assurance."[160]

95. The importance of research to the process of determining what is "in the best interests of the child" can hardly be overstated. The Children Act 1989, s.1, expressly requires the court to give paramount consideration to the welfare of the child. Far greater attempts are made than was once the case to link decisions with expert understandings of child development and children's well-being. However, 'evidence-based practice', which is of growing importance in areas such as health and social care, is lacking, particularly in the area of the management of private law disputes and decisions about contact. The complaints which we have received from non-resident parents and their representative groups alleging bias against them on the part of CAFCASS, for example, perhaps reflect the concern expressed by MCSI that CAFCASS is to some extent working in a vacuum when it comes to making recommendations to a court about what is going to be best for any particular child.

96. The ability of CAFCASS to evaluate the outcomes of its interventions—in other words, to identify 'what works' and to develop best practice accordingly—depends in part upon the development of a reliable data base that can be submitted to rigorous and detailed analysis. In the absence of such data, the identification of what might be best for any particular child in any particular case is fraught with difficulty. The development of a research-friendly culture, which welcomes external analysis and can work in partnership with the research community, will be central to the achievement of this goal.

85 op cit, Chief Inspector's Foreword Back

86 Ev 213, 219, 246-252; Qq 44, 205, 90 [Ms Gieve], 119, 182. See also results of Law Society survey of its Children's Panel completed in March 2003 Back

87 Q 205 [Mr White] Back

88 Ev 124, 234 Back

89 Ev 247 para 4 viii; Q 181. See also recent Annual Reports of GALRO Panels for, for example, Heart of England, Cumbria, Northamptonshire, Leicestershire and Rutland, South-east Wales, Wiltshire and others Back

90 Law Society Children Panel survey, March 2003 Back

91 The corresponding figures for total live caseloads are:

March April May

Public Law 12480 12270 12077

Private Law 8094 8524 8398 Back

92 "Snapshot figure" for unallocated cases. The figures for the number of cases unallocated after 7 days (the time on which the performance target in CAFCASS's Corporate Plan is based) is April 490, May 511 (figures not available for March) Back

93 Cases unallocated 10 weeks before the filing date with the courts Back