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

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

6 Corporate governance

97. Many of the concerns we have discussed earlier in this report may be put down to the difficulties inherent in creating a new organisation to take over the running of services previously provided by a number of others. The evidence we have received, however, suggests that the task of creating that new service has been hampered not merely by those inherent difficulties, but by more fundamental failures in management, organisation and corporate governance. We touch on those concerns above: in this chapter we discuss them more fully.

Management and organisational culture

98. CAFCASS's strapline, which appears on all its documents, says, "Putting children and young people first". However, evidence not only from children's guardians but also from solicitors, voluntary organisations and CAFCASS's own managers has suggested that from its inception CAFCASS at a national level has given greater consideration to its own corporate priorities than to promoting and defending the interests of children.[161]

Management

99. A number of witnesses suggested that CAFCASS was over-managed.[162] We were told that the ratio of managers to practitioners had increased markedly since CAFCASS's establishment. CAFCASS has an extensive management hierarchy, comprising four tiers of managers below the Board (Chief Executive, Director of Operations, Regional Manager, Team Manager). The CAFCASS Board has recently approved proposals to add in an extra tier, Divisional Manager, directly below Director of Operations.[163] This contrasts with the "flat" management structure envisaged by many when CAFCASS was established.[164]

100. Allegations of "top-heavy" management sit side-by-side with suggestions from other witnesses—notably, for instance, the CAFCASS Managers' Association—that there is a dearth of front-line managers, and that CAFCASS does not have a sufficiently rigorous performance management system in place to monitor, manage and improve the performance of front-line staff.[165] They also sit uneasily beside MCSI's conclusion that management capacity at headquarters needed to be strengthened.[166]

101. One way of explaining this paradox might be to return to the allegation of excessive attention to corporate priorities. CAFCASS has had to develop management structures for a completely new organisation, which is no easy task. Many have seen CAFCASS as devoting disproportionate attention to devising and implementing management structures, at the expense of consideration of how to improve its service to children and the courts. The decision to introduce yet another tier of management is but the latest example of this. In the light of the findings set out elsewhere in this Report, the strengthening of management capacity at Headquarters recommended by MCSI might better be achieved by the recruitment of more policy development and research staff. A more telling explanation for the complaints about management style comes in a submission from a CAFCASS Board member.

102. Our witness comments, "the evidence given to the Select Committee has been that there continues to be real dissatisfaction with the management style of the organisation. It is regarded as centralist, hierarchical and demanding, while still struggling in areas to get its own act together. The enormous resources of talent and experience among the local workforces often seem not to be effectively used."[167]

103. She continues,

I believe the reality is that CAFCASS management are developing a fairly standard central control management style and structure. This is partly because that is what they are comfortable and familiar with and partly because the external demands for information and response appear to imply a top down hierarchy and centrally imposed national standardisation.

Management are, I believe, distinctly uncomfortable and critical of the pre CAFCASS Guardian approach which allowed practitioners to self manage on a professional basis and respond to the demands of the court system on an individual basis while working to a panel with no budgetary control.

I am confident that there is another way to manage the organisation using a more bottom up creative approach and that this would create an organisation which was more enjoyable to work in and achieved more while still delivering the overall management of the organisation. However there is no experience at senior management level in CAFCASS or the LCD of this approach and therefore there is neither the vision, expertise or will to try and implement it.[168]

Internal communications and relations with front-line staff

104. Despite the emphasis on management structures, CAFCASS has failed to establish effective links between Headquarters and front-line staff on the ground. MCSI found that "some staff [at headquarters] saw no relevance to their particular jobs in being informed about how front-line services were delivered."[169] On the public law side, the dearth of managers at all levels with knowledge and experience of public law exacerbated the difficulties which were bound to occur in the move from the lightly-managed GALRO Panels to the more formal line-managed structure of the new service. Poor internal communications have alienated front-line practitioners and created a very difficult working environment for front-line managers and administrative staff.[170] There is ample evidence of the failure of internal communications in the conflicting accounts of the Chief Executive, on the one hand, and the CAFCASS Managers' Association, on the other, concerning promulgation of the announcement of our inquiry.[171]

105. The consequences of the failure to understand the needs, feelings and concerns of front-line staff—both managers and practitioners—or how the service actually works have had an effect on many different areas of CAFCASS's work. The most obvious example of the failure of management to address the needs of staff and the Service is the dispute with self-employed guardians, which we discuss above.[172] We have not examined in detail the claim and counter-claim which has surrounded this unfortunate episode in CAFCASS's development. We have not, therefore, taken a view on whether one witness's description of the dispute as "[betraying] a 'Thomas à Beckett' attitude—'who will rid me of these troublesome guardians'"[173]—is justified or not. Whether or not this and similar views are justified, they are certainly widely held,[174] and this in itself is testament to the way in which relations with this important sector of staff have been mishandled. But the evidence which we have received from Napo and, most particularly, from the CAFCASS Managers' Association shows that the problem has affected all parts of the workforce.[175]

The "mixed economy"

106. The decision not to offer self-employment also betrayed an inability to comprehend the nature of the service CAFCASS was supposed to be delivering. In a demand-led service, it seems self-evident that the use of a "pool" of workers who can be called upon when needed, but who do not need to be kept fully employed, is the most effective way of coping with fluctuations in demand.[176] This did not, however, seem to be evident to the CAFCASS Board, advised by the senior management team at the time, when it decided not to offer any self-employed contracts at all. It was this reaction to the dispute over the terms of the self-employed contract which convinced guardians, and many others, that CAFCASS was not interested in achieving the best possible service for the courts and for children; but was rather intent on exercising the greatest possible degree of control over its practitioners.

107. The dispute with guardians made a significant contribution to the problems of delay and the backlog of work which has built up in public law. As a result of the judicial review, a moratorium had to be placed on further recruitment whilst the dispute was settled, preventing CAFCASS from getting in the staff it needed to meet demand for its services. However, the attitude which CAFCASS seemed to be displaying towards its self-employed staff also resulted in the alienation of this group and a perception that they were undervalued. Many left the service altogether and took up other employment in the social work arena. But we were also told that those who remained felt an understandable reluctance to display the same level of commitment to the service as a whole (as opposed to the individual cases on which they were working) which they might have displayed in similar circumstances pre-CAFCASS.[177] Backlogs and delays in allocation were not unknown under the pre-existing guardian panels. Witnesses told us, however, that the esprit de corps amongst the guardian panels would prompt a concerted effort on the part of all concerned to clear any backlog, if necessary by practitioners taking on additional work over and above what they would normally expect to do. In the light of the way they felt they had been treated, guardians working for CAFCASS, it was suggested, decided that it was up to management to find a way out of the hole it had dug for itself. If CAFCASS is concerned, therefore, that over-reliance on self-employed guardians has "inherent risks",[178] it is only because it has not done enough to ensure that self-employed guardians are committed to working for it.

108. Despite the reversal of the decision not to offer self-employed contracts, and the eventual agreement of a suitable contract for self-employed practitioners, guardians have continued to feel that CAFCASS is not fully committed to operating a "mixed economy". They have suggested that the obsession with management remains, often to the detriment of the service. For example, there were allegations:

that the change in the means of paying travel costs discouraged guardians from working with children now resident some way away, even where the guardian had worked with them before;[179]
that CAFCASS would not take telephone messages or pass on correspondence for self-employed guardians;[180]
that self-employed guardians were denied access to the CAFCASS Intranet;[181]
that self-employed guardians were effectively denied access to training opportunities (because, unlike employed staff, and in contrast to the pre-existing GALRO panels, CAFCASS does not pay its self-employed contractors to attend training)[182].
that, despite the general shortage of guardians, CAFCASS managers had preferred employed staff over self-employed guardians when allocating cases, even where a self-employed guardian had acted for a child previously. Investigations by MCSI did not substantiate those claims, but did lead to a recommendation that "CAFCASS needs to be able to demonstrate a degree of transparency in implementing its allocation procedures in support of a mixed economy."[183]

109. Even during the course of our inquiry concerns have continued to be raised about the extent of management commitment to the "mixed economy".[184] A supplementary memorandum to our inquiry by CAFCASS notes that the budget provides for the recruitment of a further 132 whole time equivalent practitioners. It says, "Mostly this will be used to recruit employed staff, but some may be used to purchase the services of self-employed practitioners".[185] This does not appear to demonstrate a wholehearted commitment to the mixed economy, notwithstanding the somewhat half-hearted claim to the contrary earlier in the memo.[186] A memorandum from a group of self-employed guardians in the south-west of England, for example, expresses concern at "the number of employed professionals that has recently been recruited in our area, and the ensuing risk that we will be excluded from the service completely."[187]

110. Indeed evidence suggests that CAFCASS senior management still has not grasped the principles of the operation of a "mixed economy". An interview with the Chief Executive, in February this year, records him as saying, "To some extent, unallocated cases are a fact of life. Unless there are a number of staff doing nothing at any one point, there will be requests coming in that have not been allocated."[188] Yet the very point about operating a "mixed economy" is precisely that it is possible to have a number of practitioners, if not "doing nothing", then at least not fully occupied and therefore available to take on new cases. This was how the pre-existing GALRO panels operated, and, whilst delays and backlogs were not unknown, the position never reached the proportions of the current crisis.

111. It is important that, as well as using and developing its employed guardians, CAFCASS senior management embrace the principle of a mixed economy and repair relations with self-employed guardians. This is so for a number of reasons. It is not just a question of good staff relations, important though they are. It would be unacceptable if some children and families were offered an inferior service because of the neglect of a significant part of the skilled available workforce. If self-employed guardians do not have access to training and professional development, it is difficult to see how they can be expected to provide the optimum level of service to CAFCASS's clients. Just as importantly, however, the effective operation of a mixed economy of employed and self-employed practitioners would make a considerable contribution to the management of the fluctuating demand for CAFCASS's services, and thereby help to reduce the damaging delays in allocation which have been experienced since CAFCASS's establishment.

Relationship between LCD and CAFCASS

112. The starting point for a discussion of the relationship between CAFCASS and the LCD is an understanding of the proper position of a non-departmental public body (NDPB) vis-à-vis its parent Department. According to the Cabinet Office Classification Guidance, the purpose of setting up a body as an NDPB is "to permit a service or function to be carried out at arms length from the Government."[189] CAFCASS is constituted by an independent Board made up of a Chairman and not less than ten other members. The Board is appointed by the Lord Chancellor, but the Chief Executive is answerable to the Board, not to a Minister in the sponsoring Department (as is the case, for example, with an executive agency).

113. The decision to establish CAFCASS as an NDPB, rather than an as executive agency or any one of the other options put forward in the 1998 consultation paper, appears to have reflected the views of the majority of respondents to that consultation.[190] The Parliamentary Secretary in the LCD at the time stressed the importance of "making a separation between the developers of family law policy and a service advising the court on the welfare of children."[191]

114. It does not appear, however, that the relationship which has obtained between CAFCASS and the LCD has respected the principles of how an NDPB should be operated. The problem starts with the Framework Document which is supposed to establish the constitutional relationship between CAFCASS and its parent Department. In an important memorandum to this inquiry, Peter Harris, former Official Solicitor, makes a powerful case, which we accept, that the Framework Document fails to reflect the proper relationship between the LCD and CAFCASS as established by the relevant legislation.[192] Amongst a number of issues he raises regarding the framework document, the following two are perhaps of most significance:

the framework document puts a duty on the Chairman of CAFCASS in advising the Lord Chancellor on the appointment of a Chief Executive, whereas the statute makes clear that it is the CAFCASS Board which appoints the Chief Executive, albeit only with the approval of the Lord Chancellor;[193]
a number of statements in section 2.7 of the framework document cannot be reconciled with the statutory basis on which CAFCASS is established, and appear to show the Department assuming greater powers over CAFCASS than is consistent with its position as an NDPB.[194]

115. The degree of dependence on the LCD is evident throughout the document: see, for example, para. 2.2.1, where it is explicitly stated that the "Chairman and Board of CAFCASS are accountable to the Lord Chancellor'"; 2.6.1., where the Lord Chancellor appoints the Chairman; 2.9.1 where the "sponsoring team" is referred to; 3.1.1., where the regularity of meetings between the Chair and the Lord Chancellor is laid down; 4.1.2., where it is stated that the Lord Chancellor "has approved the…key objectives for CAFCASS"; 4.1.3., where the Lord Chancellor agrees the key performance targets and indicators; 5.2.1., where the Lord Chancellor "will inform CAFCASS of his strategic policy objectives"; and so on.

116. Whilst similar requirements may appear in operating documents of other NDPBs, generally such documents are much looser and emphasise the independent role of the NDPB.[195] CAFCASS's Framework Document, whilst not being identical to other framework documents for agencies, bears marked similarities in most respects.[196] The intention to integrate CAFCASS with the work of the Department at all stages is evident throughout the document and belies the claim of NDPB status. Indeed, in his foreword to the document, the Lord Chancellor even refers to the Service as an "agency".

117. The Framework Document also displays a curious, and worrying, lack of attention to CAFCASS's key role. Peter Harris describes the problem:

The framework document which sets out the relationships and responsibilities of the Lord Chancellor, the Board and the Chief Executive, runs to some 42 A4 sheets. It refers to children and advice to the court in paragraph 1.2.2, which in effect reproduces section 12(1) of the Criminal Justice and Court Services Act 2000. One has to turn to Annex A, at page 30, to find a further reference to children and assisting the courts. There is no mention of a duty to "promote the welfare of children who are the subject of family proceedings by the provision of welfare reports to the court", which was seen by Ministers as of central concern in the Consultation Paper, nor of "ensuring that, wherever possible, their [children's] wishes and feelings are placed before the court in accordance with the principles of the UN Convention on the Rights of the Child, particularly Article 12," or that "where rules of court allow, children with party status have a recognised role in the proceedings. This is achieved by representation and should be facilitated by the unified service. ………….." These are surely the reasons for bringing the Service into being, and while mention of section 12 of the Act gives the statutory description of functions, a more explicit explanation of what the Service is essentially about should be set out in the framework document.[197]

118. Peter Harris's conclusions are supported by a number of other witnesses.[198] It is interesting also to compare them with MCSI's suggestion that, "the LCD might wish to reconsider, in the light of the findings of its Departmental Landscape Review, whether NDPB status is optimal for this organisation":[199] a suggestion which the Chief Inspector later clarified as meaning reconstituting CAFCASS as an executive agency, rather than an NDPB.[200] In the light of the other evidence we have received, it seems that this suggestion goes less to a change in the relationship between CAFCASS and the LCD than to reflecting formally the position which currently obtains.

119. The full extent to which the resulting confusion contributed to the problems which CAFCASS has experienced, particularly the dispute with self-employed guardians, is difficult to judge. The impression grew amongst guardians and others that the LCD exercised control behind the scenes over decisions about the guardian service.[201] CAFCASS provides a vitally important service in which we would expect Ministers to take a close interest. The confusion over the terms on which they do so has resulted from the unclear constitutional relationship between LCD and CAFCASS. It has produced suspicions of inappropriate interference and has hampered efforts to establish a properly functioning service.[202] The resolution of the crisis in service provision which CAFCASS has experienced, and the establishment of a body which is able successfully to coordinate and extend support services for families experiencing relationship breakdown, requires firm leadership and clear decision-making structures. Neither have been apparent in CAFCASS so far, and both are significantly more difficult to achieve in the context of the confused relationship we have described.

The CAFCASS Board

120. These and other problems might have been avoided had CAFCASS had a strong Board, with responsive Chairmanship, which understood its role and was prepared to offer the leadership and strategic guidance which was necessary for the task of setting up a new organisation. There was a widespread feeling amongst our witnesses that this has not been the case.[203]

121. Problems with the Board began with the failure to ensure its timely establishment, as detailed above.[204] Even once it was established, however, serious doubts emerged about the range of experience and expertise represented on it. Peter Harris, the former Official Solicitor, once again sums up the feeling amongst witnesses when he says,

The Board of CAFCASS consists of a Chair and 10 members. The Chairman was formerly the Chairman of Scope and latterly has been a management consultant. Of the other ten members only one, Leonie Jordan, a practising solicitor, has any direct experience of children proceedings or court reporting. While several other board members have experience of social services, none appears to have experience of involvement in child care proceedings or advising the courts. The only other Board Member to have had experience in these matters resigned from the Board within 7 months of appointment.

He concludes, "It seems regrettable that the body with the statutory duty of providing children's guardians and children and family reporters, to safeguard the interests of children in litigation and to provide advice to the courts, should have so little knowledge of the nature of the business in respect of which it is responsible."[205] Kit Chivers, Chief Inspector of Court Services, reflected that view when he said, in the foreword to his Unit's most recent Report on CAFCASS, that the Service "needs people of recognised stature on its side to help shape the strategic choices and to lend them authority."[206]

122. A late submission from an individual Board member confirmed our concerns about the ineffective operation of the Board during the difficult early period. Whilst she notes some recent improvements, particularly following the appointment of the current Chief Executive, she suggests that the Board remains "disempowered and unable to make a valued contribution to the oversight and strategic direction of CAFCASS."[207] Two particular points in that memorandum reflect concerns we have raised.

123. Firstly, it is clear that the confused lines of accountability between LCD, CAFCASS and the Senior Management Team, particularly the Chief Executive, are seriously hampering the Board's ability to make an effective contribution.[208] As we say above, we can understand the desire of Ministers to keep a close eye on the Service. It is quite proper for the relevant Minister to meet the Board Chairman on a regular basis and to monitor the operation of the Service. When the Board is bypassed by the direct involvement of the Chief Executive and senior LCD officials, it is left disempowered and unable to fulfil its role effectively. Secondly, the lack of relevant experience and expertise on the Board make it important that it is not reliant solely on the senior management team for information about the service. Our witness's complaint that Board members do not yet have access to the CAFCASS Intranet and "are discouraged from receiving information about the work of CAFCASS other than from management"[209] is therefore a matter for considerable concern.

124. Clearly the Board was hampered by the appointment of the first Chief Executive, who turned out to be so unsuitable for the job that she was eventually dismissed. Even taking this into account, however, there is no doubt that it has failed to deal effectively with the task with which it is entrusted. The most obvious example of this was the Board decision, early in its existence, to withdraw the offer of self-employment—the decision which was overturned at judicial review. Since then, the Board has failed to re-establish confidence in its ability to provide strategic direction and effectively hold the senior management team to account. The Board has not given the impression that it has any clear idea of how CAFCASS should be re-establishing itself as an effective organisation.

161 Ev 141 para 3.8, 198 para 4.1, 212 para 23, 217, 239, 244 para 2; Qq 124 [Ms Timms], 127, 157 ff, 190, etc Back

162 Ev 83, 85, 102 para 9, 112, 119,121; Qq 158, 221 Back

163 CAFCASS Board Minutes for 5 March 2003, item 9 (available on www.cafcass.gov.uk), Q 221 Back

164 Ev 112 para 12, 166 para 6.4 f, 250 para 2.2. See also Ev 198 para 3.1 Back

165 Ev 136 s 3, 219 s 3; Q220. See also para 76 above Back

166 Setting a Course, para 2.22 Back

167 Ev 228 Back

168 Ev 229 Back

169 Setting a Course, para 2.32 Back

170 Ev 139, 239 Back

171 Ev 239; Q 252 Back

172 Para 35 ff Back