Written evidence submitted by Benedict
Grey, children's guardian and social work consultant (CAF 26)
I am Benedict Grey, Children's Guardian and
Social Work Consultant in the South East.
My qualifications include MA in Social work
with Distinction (Warwk), BA in Politics, Philosophy and Economics
(Oxon), and Diploma in Social Work (CCETSW). I have published
articles in the Legal Journals "The Family Law Journal",
and "Representing Children", and the Social Work Journal
"Community Care" on the role of the Children's Guardian
and recent changes.
I, like many in my profession had high hopes
for the new Children and Family Court Advisory and Support Services
(CAFCASS). Opportunities were many for a new national service
to extend good practice, build on the strengths of the three services
it combined, and to have a voice in the development of policy
and practice in the Child Care field. Sadly, such aspirations
have been dashed. The service set up to "advise and support"
the Courts on the best interests of children, has been censured
by the Courts for acting unlawfully towards Children's Guardians.
None of the critical issues for the Family Justice system have
begun to be addressed. Instead, CAFCASS was bogged down in an
acrimonious contract dispute, with Children's Guardians fighting
to ensure credible independent representation for children. The
only Judge on the CAFCASS Board has resigned, the director of
operations went after only three months in post, and the CAFCASS'
Chief Executive was sacked. Whilst things have improved, waiting
lists continue to grow in some areas of the country, and CAFCASS
has been forced to question principles once felt fundamental to
the service, such as the right of a child, whose basic human rights
are being judged upon, to legal representation, and an experienced
independent advocate of their best interests.
ALTERNATIVE PATHWAYS
I would respectfully suggest to the Committee
that things might have been different. The following principles
have been sadly absent in the history of CAFCASS hitherto:
(1) A open, honest and constructive stance.
(2) Changes should be tried and tested, purposeful,
and evidence based.
(3) Existing expertise, strengths, and proven
methods and working arrangements should be the foundations of
change.
(5) A proper appreciation of the nature and
importance of Guardian's role.
AN OPEN,
HONEST AND
CONSTRUCTIVE STANCE
It is now self-evident that trust has broken
down between Guardians and CAFCASS. Whereas most Guardians had
a strong investment in the reputation of their old panels, CAFCASS
is now perceived as the enemy of a quality service to children.
It need not have been so.
Firstly promises were broken with alarming regularity.
Among the most serious are those relating to self-employment.
David Lye, CAFCASS project director wrote:
"Self employed staff will be able to retain
their self employed status, and will either be offered a new self
employed contract (if we can agree an acceptable contract with
NAGALRO) or will like employed staff be able to retain their existing
contracts." (Lye 2000, the same promise is also made in CAFCASS
2000)
This promise was broken on three accounts. Firstly,
contracts were imposed on Guardians, and only the intervention
of the Courts brought some kind of acceptable solution. Secondly,
there were no attempts to negotiate different options with NAGALRO,
the professional association representing the overwhelming majority
of self-employed children's Guardians, prior to the Judicial Review
decision. Thirdly the option of self-employment was itself withdrawn
by CAFCASS' decision of 27 June 2001. On 14 September 2001 Scott
Baker J, in the Judicial Review (NAGALRO vs. CAFCASS, 2001) declared
this unlawful, calling it a "bombshell" and a "complete
volte-face". It contradicted all that had been said and promised
before, and gave Guardians less than three weeks to decide upon
a critical change to their practice and livelihoods. CAFCASS had
attempted to argue that it was not bound by anything that was
said prior to 1 April. Scott Baker J was unimpressed and ruled
accordingly. Even were this legally true, however, what does it
do for confidence in the new service, that the promises and statements
of the preparatory team are declared null and void?
Secondly, if CAFCASS were open and transparent
about their decision-making then things might have gone differently.
Guardians are used to weighing up and evaluating evidence. However,
CAFCASS has not seen fit to bring out into the open the advice
and discussions it has had. For example, no evidence was shown
to Guardians to evidence CAFCASS' claims about the Inland Revenue.
Involving NAGALRO in discussions with the Inland Revenue could
have saved months of acrimony, as indeed was shown by the swift
resolution of this issue when negotiations did take place following
the Judicial Review.
Thirdly, prior to the final Judicial Review
decision on 14 September 2001, which explicitly ordered such negotiation,
CAFCASS refused to recognise NAGALRO's mandate to negotiate on
behalf of self employed Guardians, and engage NAGALRO in any constructive
dialogue. Even when directed by Scott Baker J, in giving leave
for the Judicial Review, CAFCASS refused to meet with NAGALRO.
CAFCASS simply refused to acknowledge their responsibility to
try and resolve the dispute constructively, and consider seriously
the consequences of its actions. Mr Justice Scott Baker's comments
stand as an epitaph for the whole process:
"[CAFCASS] seems to have given little thought,
if any, to the effect of this sudden and dramatic about turn was
likely to have on its relationship with the very people it needs
to fulfil its statutory obligations."
CHANGES SHOULD
BE TRIED
AND TESTED,
PURPOSEFUL, AND
EVIDENCE BASED
"Our approach is one of evolution, not revolution"
Lye 2000
Despite the rhetoric, revolutionary changes
to the Guardian service have been rushed through with little preparation,
forethought, research, or clear understanding of what it was trying
to achieve. The "fixed fee" proposal would have introduced
huge changes into the way in which Guardians operated. A lack
of any accounting for delays and adjournments raised the prospect
of Guardians working for months, even years, without receiving
further payment. The lack of any provision for differing travel
requirements would have affected Guardians' ability to investigate
issues or relatives where long distances are involved. These investigations
can throw up crucial issues for the children involved. Aside from
the injustice, given the huge financial pressures involved, Guardians
could not be both "independent and seen to be independent".
This continues to be a problem, as self employed Guardians are
even now not compensated for travel expenses. There had been no
research on these critical matters, or any of CAFCASS' assumptions
about the hours the Guardians work or need to work. Research and
pilot schemes should have preceded such major changes. The admission
that the scheme was dropped in favour of something believed to
be "feasible and workable" (CAFCASS 2001a) is tacit
admission that it was neither.
Similarly, the employed contract was rushed
in without any thought to what the consequences would be on service
delivery and quality if there were a mass exodus of experienced
Guardians. A survey of NAGALRO's members suggested that almost
half of current Guardians would have left without an acceptable
self-employment contract being offered. Again, the reversal of
this decision following the Judicial Review, and the resulting
negotiations with NAGALRO, whilst welcome, begs the question of
why it imposed in the first place.
The undue haste, which has characterised both
the period immediately leading up to CAFCASS and following its
inception is heavily criticised by the Lord Chancellor's Advisory
Board on Family Law:
"We cannot but be critical of the extremely
tight timetable which was imposed for the creation of CAFCASS
... We find it extraordinary that a development as important as
CAFCASS was treated in this way, and we are left with an overriding
concern that the aspirations for the service which we expressed
... may have been lost in the rush to ensure that the service
is in place by the given date" (LCD 2001, paragraph 2.78)
This is no way to deal with a service designed
to protect the lives and basic human rights of children at extreme
risk.
EXISTING EXPERTISE,
STRENGTHS, AND
PROVEN METHODS
AND WORKING
ARRANGEMENTS SHOULD
BE THE
FOUNDATIONS OF
CHANGE
"First of all we need to recognise the
wealth of good practice and learning that already exists. CAFCASS
is fortunate in that it stands to inherit many staff who are at
the cutting edge of good practice. There will be no need to "reinvent
wheels". David Lye (2000)
CAFCASS' evidence to the Judicial Review Proceedings
told a different story. Responding to the concerns of Scott Baker
J about the likely exodus of experienced Guardians in large numbers,
CAFCASS answered that experienced Guardians had only been needed
because the old system was unmanaged and "ramshackle".
Because it would institute a more managed system, it did not matter
that CAFCASS was, as the Judge put it in his questioning, "likely
to end up with a lot of very inexperienced Guardians". CAFCASS
repudiated the work done by practitioners and managers with the
project team in preparing for the service. As CAFCASS perceived
itself as a clean slate, not only promises about contracts, but
also previous work on draft national standards, appraisal, disciplinary
and complaints procedures, information for children and parents,
equal opportunities, and conflicts of interest were consigned
to the dust heap. Guardians were told that CAFCASS are not familiar
with the work of the project team, as it was locked away in the
Lord Chancellor's Department to be viewed by arrangement. [9]
Anthony Hewson, CAFCASS chairman, wrote (CAFCASS
2001 b):
"The overwhelming emphasis will be on front
line service provision. The management role will be to enable
service providers to do their jobs most effectively and to promote
improvements in quality and effectiveness". I have used the
term "light-touch" management to describe how I see
the management function working.
Such excellent intentions have not been matched
by reality. Where one tier of management (usually one manager
and administrator) has previously sufficed we now have regional
and national centres of management, with business managers, "human
resources" managers and office backroom staff. The evidence
is that far from supporting service delivery this is creating
further chaos and hindering the work of frontline practitioners
and managers. Half of former panel managers left CAFCASS within
its first six months. When urgent questions arise, different answers
are given at local, regional and national levels. Previously it
was possible to get quick and decisive answers to queries. Now
local managers are trusted to make decisions, and must seek information
from regional Management, which must then be clarified nationally.
Even then frontline workers and managers complain that they receive
information first from the columns of Private Eye. Meanwhile Guardians
get on with their work in far greater isolation than they ever
were prior to 1 April 2001.
The result of this has been the haemorrhaging
of experience from the service, and waiting lists and delays that
are putting children at risk, and the family justice system at
huge strain.
SENSIBLE ECONOMICS
Until recently CAFCASS and the Lord Chancellor's
Department spoke with one voice. CAFCASS' budget had increased
by 3.8% The dispute was not about costs. Then CAFCASS admitted
they were between £6.8 and £9.27 million adrift of what
they needed for the first year. [10]I
believe it is now thought that even this was unrealistic.
Clearly, mistakes were made in the original budgeting
for CAFCASS. The budget for the entire Guardian service was £26
million in the first year. This is the same figure that the Government's
consultation paper estimated it to be in 1997-98 (DoH 1998), some
five years ago. This paper went on to note that this was an underestimate
of the true cost, on account of "hidden" Local Authority
resources not accounted for in the budget, as well as the need
to allow for additional "start-up" costs. Once inflation
is added, it is clear that CAFCASS never had enough to maintain
a quality service to children. The Lord Chancellor's Advisory
Board on Family Law have also highlighted this underfunding (LCD
2001).
In a climate of financial crisis, it is also
difficult to understand why CAFCASS embarked on a course equivalent
to financial suicide. CAFCASS apparently believed that a fully
employed service would in fact be cheaper. If so, they cannot
have taken into account the additional costs of employment. Self-employed
Guardians not only deal with all their own tax, pension and national
insurance responsibilities. They also provide their own sickness
insurance, office space, office administration, office equipment,
research costs and more. The Hay report on the role of the Guardian
ad Litem (Hay 1994) estimated that these costs to the individual
Guardian were in the region of 67% of a Senior Social Workers
salary. It is universally accepted that were an organisation to
foot this bill by employing the worker, it would be much higher,
as there are additional costs to a large bureaucracy. However
even on this figure, the cost to CAFCASS of employing Guardians
on the salary they are offering is more than £33 an hour,
[11]twice
the overall hourly rate that was paid to the self-employed when
travel costs are taken account of. Additionally, many Guardians
work well more than the 37 hours a week the employed contract
stipulates as a maximum. CAFCASS would either have to employ more
workers, or pay overtime to cover these hours. However CAFCASS
do their sums, it cannot be the case that a fully employed service
is cheaper than the current one, or remotely affordable in the
budget that CAFCASS has set aside for Guardians.
A PROPER APPRECIATION
OF THE
NATURE AND
IMPORTANCE OF
GUARDIAN'S
ROLE
CAFCASS repeated said, as in their recent consultation
document (CAFCASS 2001a) that "the very creation of CAFCASS
removed the original concern about independence". CAFCASS'
view that administrative separation from Local Authorities is
the be all and end all of independence shows a worrying lack of
understanding of the Guardian's statutory role.
The recent Judicial review, reaffirmed previous
Judgements which stress the need for Guardians to be independent,
to be seen to be independent, and to be experienced and credible
enough to make often unwelcome recommendations in hotly contested
proceedings, and withstand pressure from Local Authorities and
other parties. Guardians, in the words of Scott Baker J, "are
appointed by the Court and accountable to the Court." The
Court Rules place a personal duty on Guardians to do all necessary
investigations, specifically to "contact or seek to interview
such persons as he thinks appropriate or as the Court directs",
and "obtain such professional assistance as is available
to him which he thinks appropriate . . . " (Court Rules 2001,
Rule 11). Guardians have a legal duty to personally apply the
welfare checklist in all they do, which places the Child's interests
as paramount.
The question is whether CAFCASS is creating
the conditions that will allow this to happen. To enable such
independence CAFCASS would need to value the experience and skills
of individual practitioners, rather than see these as replaceable
by new tiers of management (see above). The contractual relationship
between CAFCASS and Guardians must recognise that Guardians are
personally accountable to the Courts in ensuring that the Child's
best interests are paramount. The sort of personal and professional
expertise that is needed is enshrined in the previous National
Standards for the service (DoH 1995), in its detailed attention
to qualities that demonstrate such independence.
Two areas of concern will illustrate:
(i) CAFCASS appeared content with the prospect
of driving away most of its inheritance of experience and expertise.
If experience is replaced by a flood of fresh faces, how will
this provide children with representation with the expertise and
confidence to robustly appraise the work of the Local Authority?
The situation provides huge pressure to cut standards of recruitment,
and CAFCASS have already lowered the entry requirements over what
was previously common practice, and backtracked on the requirements
of an earlier paper on quality assurance (CAFCASS 2001d). It has
also resulted in the current waiting list crisis.
(ii) CAFCASS are currently talking about
their role is to provide a service to children in general, and
to manage "scarce Guardian resources" as best as possible.
This is backtracking from a commitment to provide a Guardian for
every child subject to Care and Adoption proceedings. The raison
d'etre of the Guardian service has been the appointment of an
independent advocate to ensure that the human rights of individual
children are not infringed by Local Authorities (and to some extent
the Courts) overlooking them through their attempts to manage
their scarce resources as best they could. It is not an exaggeration
to say that the decisions that Guardians are involved in hold
an individual child's right to life, and to family life in the
balance. The cost in lives of children of this approach has been
shown in numerous child death enquires, including that of Maria
Colwell, that saw the setting up of the Guardian service. If CAFCASS
is to follow the same principles, then the whole essence of the
Guardian role may be lost.
CONCLUSION
The Judicial Review and the appointment of Jonathan
Tross have resulted in improvements, and ended the paralysis that
was plunging the service into crisis. There have been attempts
to involve and consult with NAGALRO. However, the service must
be properly funded, and the damaging approaches that resulted
in the current situation must be rooted out, if CAFCASS is to
fulfil its aims, and the children it was set up to serve are not
to be the losers out of it all. Most importantly, the fundamental
aims of the service must be rediscovered, and clearly stated and
pursued. I hope the committee is able to take on board these concerns
in recommending a way forward.
REFERENCES
Case Reference: NAGALRO vs. CAFCASS, [2001]
EWHC Admin 693.
Quotations from the Judgement are from the court
approved Judgement. References to the evidence and arguments in
the proceedings are taken from contemporaneous notes made by members
of NAGALRO.
CAFCASS 2000, CAFCASS news, August 2000, p.5.
CAFCASS (2001a) "Consultation Document,
Contracts for Children's Guardians who were self-employed on 31
March 2001", 5 November 2001.
CAFCASS (2001b) CAFCASS news, January 2001,
p.7.
CAFCASS (2001d) "CAFCASS—Quality
Assurance and Audit Standards" May 2001.
Court Rules (2001) "The Family Proceedings Courts
Rules (Children Act 1989) (Amendment) 2001, Rules 11 (1) and 11
(2).
DoH (1995) "National Standards for the
Guardian ad Litem and Reporting Officer Service", Department
of Health.
DoH (1998) "Support Services in Family
Proceedings, Future Organisation of Court Welfare Services",
July 1998, Department of Health Circular LASSL(98)11, P. 5.1
Hay (1994) "The Hay Report on the salaries
and fees for Guardians ad Litem and Reporting Officers" The
Hay Group.
LCD (2001) "The Advisory Board on Family
Law, Fourth Annual Report, 2000 -2001" Lord Chancellor's
Department.
Lye (2000) "CAFCASS take shape" Seen
and Heard, Vol. 10.
Benedict Grey
March 2003
9 Information from notes made by Guardians who attended
the South West Regional Conference on 2.10.01 Back
10
Information from CAFCASS Finance Director to the CAFCASS Board
meeting 25.10.01 Back
11
This is based on a salary of £26,000 additional costs of
67% and 1,300 available hours a year. This is what the London
panel estimated (in determining hourly rates) an employed worker
would work in a year when allowing for holidays, training, average
sickness and `lost' time, through variations in the need for work
(Hay 1994) Back
| 
