Written evidence submitted by The Children's
Society (CAF 28)
1. INTRODUCTION
The Children's Society is a national children's
organisation working to achieve social justice with and for children
and young people. We have a wide range of projects across England
working with over 35,000 children and young people across a range
of issues and a diversity of circumstances.
1.2 Th Children's Society's evidence to
the Committee is based upon our experiences and knowledge both
from practice and research. Our comments are limited to the first
and critical objective of the CAFCASS service: to represent, safeguard
and promote the welfare of children involved in family court proceedings
1.3 The Children's Society has extensive
experience in advocacy, rights and participation work with children
and prior to the establishment of CAFCASS the organisation managed
the Humberside Guardian ad Litem panel and provided guardians
for a number of other panels. We work with children and young
people involved in public law proceedings in a variety of circumstances
including adoption and fostering and we also work with children
and young people experiencing domestic violence, family breakdown,
divorce and separation.
1.4 In 2000 The Children's Society published
Guarding Children's Interests[12],
an investigation into the role of the guardian ad litem service
in family law proceedings with the aim of helping to inform the
development of the Children and Family Courts Advisory Service.
The service was examined from two perspectives: that of other
professionals involved and that of the children and young people
being represented. The research confirmed the value of guardians
both to professionals within the court process and to children
involved in court proceedings. Our key concern then as now, was
to ensure that the new service to the courts kept its focus on
the child to ensure that his/her best interests were central to
its work in order to develop a truly child-centred service.
2. TO REPRESENT,
SAFEGUARD AND
PROMOTE THE
WELFARE OF
CHILDREN INVOLVED
IN FAMILY
COURT PROCEEDINGS
2.1 The Children's Society is concerned
to ensure that CAFCASS retains as its central, defining and primary
objective representing, safeguarding and promoting the welfare
of the child. We are concerned about the potential conflict that
arises from the service being both a service for children and
a service for the courts to an equal extent. Children and young
people value the independence of the guardian service and high
standards of practice and independence are critical factors. CAFCASS
must ensure that the professionalism and independence of guardians
is retained.
2.2 Dame Butler-Sloss described children's
guardians at the time of implementation of the Children Act 1989
as "the lynchpin to successful implementation of the Act".
As our research demonstrates the importance of guardians to children
and young people involved in court proceedings cannot be underestimated.
The most important characteristic identified by children and young
people is the guardians' ability to listen to them and to explain
things to them.
2.3 Critically Guardians offer the means
by which obligations under Article 12 of the United Nations Convention
on the Rights of the Child and Article 3 of the Human Rights Act
2000 can be fulfilled in the court system. Article 12 places a
duty on state parties to "assure to the child who is capable
of forming his or her own views the right to express those views
in all matters affecting the child, the views of the child being
given weight in accordance with the age and majority of the child".
The majority of children we interviewed in our research felt understood
and felt confident that the guardian could write a report about
their wishes and feelings. Significantly the majority felt listened
to even when their wishes were not followed.
2.4 Children's Society is concerned about
the waiting lists for the appointment of children's guardians
and Family Court Reporters across England. Although we appreciate
that there are variations in waiting times across the country
it is alarming that since the establishment of CAFCASS in April
2001 waiting lists are now the norm and exist in areas where previously
there had been few problems in obtaining reports. We are aware
that both the Association of Lawyers for Children and NAGALRO
have expressed their concern about the shortage of guardians and
the waiting times involved. Any delays in the system mean that
children's rights are being prejudiced and can have significant
long-term consequences for children.
2.5 The good practice guidelines recently
developed by the LCD's Advisory Committee on judicial case management
aim to reduce the time proceedings take by a third from one year
to a maximum of 40 days. Delays are causing significant problems
for children and young people party to proceedings and this needs
to be urgently addressed.
2.6 The new court rules which will accompany
implementation of the Adoption and Children Act 2002 will need
to be integrated and harmonised effectively with the Children
Act rules, regulations and guidance to ensure that proceedings
are expedited rather than further delayed.
2.7 The Adoption and Children Act 2002 has
introduced further circumstances in which the court must appoint
a children's guardian: specified proceedings under The Children
Act 1989 now include placement proceedings. During the passage
of the Adoption and Children Act 2002, the Law Society and others
made the point that the Government needed to ensure that adequate
numbers of guardians experienced particularly in adoption proceedings
were available to undertake the added work involved.
2.8 The Children's Society is very concerned
about the need to ensure separate representation for children
in private law proceedings because we know that the experience
of family breakdown, divorce and separation can be extremely difficult
for children and young people. Very often their views, wishes
and feelings become lost in an adult-focussed context. Our research
into the experience of children and young people who run away
from home[13]
shows that there is a critical link between family structure and
experience and running away. Although young people living in stepfamilies
make up around one tenth of the teenage population, they make
up one fifth of those who will run away by the time they reach
16. The period of separation of parents can be extremely stressful
for young people and sorting out contact issues can be fraught.
Children are often caught up in very distressing residence and
contact disputes and for some their whole childhood is marred
by having to live through implacable hostility between parents.
The role of a guardian in such cases can be invaluable in ensuring
that children's voices are heard. The Children's Society is of
the view that children involved in private law proceedings should
have access to a range of support services including information,
consultation and wherever necessary representation by a children's
guardian.
2.9 There has been an assumption in private
law proceedings that contact with both parents should be pursued
wherever possible and that this promotes welfare. This potentially
carries great risks for children where family violence is an issue.
The experience of a guardian would bring an independent assessment
of the child's situation and thorough risk assessment thereby
ensuring protection issues are addressed. This type of assessment
is acknowledged as not being an area in which private law staff
has traditionally worked. There is already quite a lot of concern
about the merging of the roles of private law staff (child and
family reporters) and guardians ad litem. We would want to ensure
that a high standard of practice and assessment is developed across
the service being offered to children by CAFCASS.
2.10 We know that CAFCASS is keen to consult
with children and young people about representation in private
law proceedings. We are encouraged that the Adoption and Children
Act 2002 introduces the possibility of separate representation
of children in private law proceedings. We urge an early enactment
of the court rules necessary to implement the new provisions,
including clarification about the circumstances in which it will
be seen as appropriate for separate representation
3. CONCLUSION
3.1 The question of under-funding is critical.
Our practice experience and research shows that this is intensive
work if it is to be done to the level and standard demanded in
order to ensure a good service for children. The service is clearly
experiencing recruitment problems although we hope that with the
harmonisation offer recently put forward will ameliorate the situation
to some extent. However both public and private law staff are
concerned about whether or not there will be an increase in posts
to cover the increase in workload that will result from the Adoption
and Children Act 2002. The Children's Society believes it is crucial
that the present system of tandem separate representation in public
law proceedings is preserved. The current difficulties within
CAFCASS, plus the potential increase in workload should not be
used as a rationale for undermining the rights of children and
young people to have their rights and welfare protected and to
be represented in both public and private law proceedings that
affect them.
Patricia Durr
Parliamentary Liaison Officer The Children's Society
March 2003
12 McCausland. J (2000): Guarding Children's Interests:
The Contribution of Guardians ad Litem in Court Proceedings. The
Children's Society, London Back
13
Rees, G & Rutherford. C (2001): Home Run; Families and
Young Runaways, London. The Children's Society Back
| 
