Memorandum submitted by Joan Hunt, Senior
Research Fellow, Centre for Family Law and Policy, University
of Oxford (CAF 29)
This evidence is submitted from my position
as a family law researcher who has, since 1985, undertaken substantial
research (listed at th eend of the submission) into two of the
services which came together to make up Cafcass. As a member of
the research team at Bristol University which originally suggested
the creation of an integrated service I have also been particularly
interested in, and concerned about, how that idea has been put
into practice.
1. It is deeply ironic that four of Cafcass's
key objectives relate to improving services when one of the major
elements in the new organisation—the service provided by
guardians in public law cases-is in crisis, and the other—
the service provided to children in private law, has not been
able to move forward.
THE DECLINE
IN THE
SERVICE PROVIDED
IN PUBLIC
LAW
2. Cafcass took over a guardian service
in good, albeit not perfect, order, [14]due
in no small part to the fact that, being demand-and needs-led,
it was well-resourced. With the exception of a few "hotspots",
notably London, waiting lists had not been a problem since the
early days of the service and most panels were able to allocate
cases within a day of referral. Guardians were highly regarded
by the courts and other practitioners within the family justice
system and the value of the role was well established. The work
was professionally rewarding and morale was high. Thus the panels
were able to recruit and retain well qualified, experienced and
committed staff. The tandem model of representation by a guardian,
working in conjunction with a specialist children's solicitor,
was the envy of many other jurisdictions.
3. There were issues which needed to be
addressed—notably the limited scope for Panel Managers to
exercise effective control over quality and cost-effectiveness.
It was hoped that, as a national organisation, independent of
local authorities, Cafcass would be in a better position to address
this and develop mechanisms for ensuring cost-effectiveness while
maintaining, and where necessary, raising, the level of service.
4. In the run-up to implementation much
careful preparatory work was done, engaging staff, as well as
stakeholder groups, in the process of trying to apply the knowledge
and experience of the service to setting up the new organisation.
Although there was, understandably, a great deal of anxiety, in
general practitioners were optimistic and prepared to commit to
a new service which would be more than the sum of its parts.
5. It has been extremely disappointing to
witness the way this initial capital and goodwill was squandered
in the first year, with effects which are still apparent: the
haemorrhaging of experienced practitioners and managers, the demoralisation
of those who remain, an atmosphere of distrust between the organisation
and its frontline staff, and a serious backlog of cases in some
areas.
6. The issue for Cafcass, therefore, in
relation to public law work, is not how to improve on the service
it inherited but how to get back to the level from which it started.
7. In the short term at least, the organisation
needs to be able to concentrate on restoring a good level of service,
and to devote its energies to ensuring effectiveness, rather than
being overwhelmingly preoccupied with keeping costs down. The
latter is likely to result in overly simplistic attempts to tightly
limit guardian input into cases, which will increase risk to children
and lead to a further loss of experienced staff.
8. Others will, no doubt, comment on how
events came to the current pass and on the issues of recruitment,
staffing, training, supervision and management which Cafcass needs
to address. Here I wish to draw the committee's attention to recent
research, conducted by myself and colleagues at the University
of Oxford, which is pertinent to the question of efficiency and
cost-effectiveness.
RESEARCH INTO
THE REASONS
FOR VARIATION
IN GUARDIAN
HOURS
9. It was always evident that one of the
major issues Cafcass, an organisation with a fixed budget, would
face, would be that of efficiency and cost-effectiveness in public
law work. This was because the service it inherited was demand-led
and managers were able to exercise little control over the hours
guardians put into any individual case. Furthermore most guardians
were self-employed, remunerated on the basis of hourly fees.
10. It was in an effort to ensure that the
development of policy within Cafcass on this issue could be informed
by sound empirical evidence that my colleague Nancy Drucker and
I obtained funding from the Department of Health, which was then
responsible for the guardian service, to undertake research on
a sample of almost 600 pre-Cafcass cases.
11. One of the main purposes of the study
was to identify the factors which drive costs and explain why
some cases take so much more guardian time than others. Although
on average care cases—the element of public law work which
tends to absorb the most guardian time—were taking around
120 guardian hours, there was a huge range, from under 20 hours
to over 800. There was little understanding of why this should
be, but some suspected that much of the explanation lay in the
practice of individual guardians, some being more efficient than
others.
12. This research, [15]which
was completed last year, shows very clearly although there is
indeed huge variation in hours per case this variation is not
arbitrary, but for the most part explicable and logical. Further
that that while guardian-related factors (experience, practice
and employment status) do play a part, most of the key cost-drivers
are to be found in the cases themselves and their management by
local authorities and the courts.
For example, case and court-related factors
which proved to have a statistically significant association with
professional hours include the number of children in the case;
the number of parties; the duration of the proceedings from first
to final hearing; the number of hearings; the length of the final
hearing; and whether the case is heard in the family proceedings
court or is transferred to a higher court. Indeed the duration
of the court proceedings explains almost half the variation in
hours between cases. Examples of local authority practice with
a statistically significant effect on guardian hours include the
local authority not having gathered sufficient evidence to meet
the threshold criteria for care proceedings or the case having
no social worker for a period.
IMPLICATIONS OF
THE FINDINGS
FOR CAFCASS AND
FOR THE
LORD CHANCELLOR'S
DEPARTMENT AS
ITS SPONSORING
BODY
13. Cafcass must collect simple reliable
case data and use it effectively. Only in this way will the service
be able to keep track of factors in the local environments—such
as case duration—which have such a major effect on the service.
Although the collection of such data is fundamental to the management
of the service, we understand that in some areas at least data
collection, entering and reporting has all but broken down.
14. Cafcass must recognise the multiplicity
and complexity of the factors affecting guardian hours in individual
cases. Over a large number of cases, such as those handled by
a region, it should be possible to use certain key factors, such
as duration, and rates of transfer to the higher courts, to help
predict overall hours and therefore costs. This may help Cafcass
in the distribution of its budget. However, such factors cannot
be used to predict or control, at the level of the individual
case, how many hours that particular case will or should take,
because there are so many complex and interacting variables—such
as whether a child has special needs.
15. Formulaic requirements—such as
tight targets or benchmarks for hours on particular types of cases—
are therefore inappropriate and unworkable. The interim findings
from our research [made available, in January 2002, to Cafcass
and NAGALRO in the negotiations over the self-employed contracts]
clearly demonstrated that one attempt at such a formulaic approach,
graduated fees, could not be made to work and would be unfair,
wasteful and administratively inefficient[16]).
Predictions of hours based on a manageable number of key objective
factors—such as number of children, number of parties and
duration—were accurate within a ten hour margin either way
in only a third of cases.
16. This means that the necessary accountability
for time taken by individual guardians has to be achieved in other
ways, for example by looking at a range of a guardian's cases,
perhaps using the factors as an aid to discussion, but looking
closely at what the particular cases required and the quality
of the guardian's work, not simply how many hours were spent.
17. Cafcass needs to work with other agencies,
particularly the courts and local authorities and the relevant
government departments, to address some of the external factors
pushing up hours, such as court delays, inadequacies in social
work practice and shortages of experts.
18. At the same time, Cafcass needs to accept
that some adverse factors cannot be readily ameliorated. In the
interests of some children whose plight is urgent, a guardian
may need to do some things—for example seeking out relatives
who may be available to care for a child, if Social Services have
failed to carry out their duties.
19. Cafcass is faced by what its Legal Director
Charles Prest has called "a terrible tension between the
desire to do the best for children in each particular case and
the need to do the best overall for children within the family
justice system." Guardians need to enter into this debate,
to recognise that Cafcass can legitimately enquire into how they
are carrying out their responsibilities and whether the activities
they undertake are justifiable and productive. There is a real
question about the standard of service to which the organisation
should aspire as well as what it can afford. However it is vital
that Cafcass approaches this in an even handed way, addressing
not only the issue of whether some guardians are possibly doing
"too much" on cases but also whether others may be doing
"too little". The adequacy of the overall budget is
obviously a key enabling or disabling factor in this.
20. It is also important that the effects
of any reduction in service by guardians to the children they
represent are considered, by the LCD and other government departments,
in a wider context. Might the result be the greater use by courts
of experts and independent social workers—leading to greater
fragmentation, more delay and higher overall costs? Or even more
seriously might children be put at risk if cases go haywire? The
rationale for the public law element within Cafcass is to provide
a safety net for children whose life chances have already been
compromised and this fact needs to be held at the forefront of
the debate. In the end, it should be the work guardians do and
its value to children on which attention is primarily focussed.
21. Finally, it is salutary to remember
that the cost of the guardian's input into a case is not huge,
compared to the costs of the rest of the system. In our study
the average guardian time per case was 97 professional hours (excluding
travel time), over nine months. Currently the highest hourly rate
paid to self-employed guardians is £25.50, giving an average
total cost of £2,474 per child. Even the highest hours case
in the sample (553 hours) would have only costed £14,102.
Given the importance of the guardian's role in safeguarding the
interests of children whose life chances have already been seriously
compromised, that does not seem an extravagant use of public funds.
THE NEED
FOR IMPROVEMENT
AND DEVELOPMENT
OF THE
PRIVATE LAW
SERVICE
22. In contrast to the well-funded guardian
panels, the family court welfare service inherited by Cafcass
was under-resourced, having been marginalised by its host organisation,
the Probation Service, for many years. There was some evidence,
including two pieces of research conducted by myself and colleagues[17],
that the service was not always able to carry out its core task—the
preparation of reports for the court— effectively, because
of managerial pressure on throughput. Three-quarters of the parents
we interviewed thought that the FCWO (now Child and Family Reporter)
needed more time to spend on each case; with one half wanting
more time spent with the children. Two-thirds thought that the
investigation had not been sufficiently thorough.
23. In addition to improving the basic service,
however, both research studies also suggested that the services
offered to families in private law proceedings would have to be
significantly expanded, if the needs of children experiencing
separation-related parental conflict were to be better met. Most
children survive parental separation and divorce without long-term
adverse effects but children whose parents take their disputes
to court are very vulnerable. Just under half the children in
our study of welfare reporting were showing significant levels
of emotional and behavioural difficulties, twice that expected
in the general population and comparable to that of a sample of
children who had gone through public law proceedings.
24. Cafcass cannot be solely responsible
for providing for these children nor for running services which
will help prevent and alleviate parental conflict. But it should
have a significant part to play, for instance in developing parent
education programmes and counselling/advice services. This will
require additional resources—while investment in these types
of prevention may, in the long-term, save costs there is likely
to be a substantial time-lag before any pay-back is seen.
25. A more effective service to families
also, in my view, requires the role of the CFR to change in a
number of ways, which also have resource implications. At the
moment the role is largely constructed in terms of assessment
and reporting to the court and the officer's involvement usually
ceases with the conclusion of proceedings. While this has its
place, what can be achieved through this process is limited. What
is likely to be more helpful to families is to have assistance
from the officer in the process of coping with the difficulties
of post-separation parenting. In some cases help also needs to
continue after proceedings, either through the formal mechanism
of a Family Assistance Order or through offering parents the opportunity
to come back to the officer for further help.
26. Finally, changes are necessary in the
way the interests of children are protected in private law proceedings
and their views brought into the process.
27. Less than half the children in our Families
in Conflict study felt that their voices had been heard, although
more than three-quarters said they did want to be involved. Compared
to the children's guardian, who plays a central and powerful role
in public law proceedings because s/he is acting for a child who
is automatically party to proceedings, the CFR is in a relatively
weak and marginal position. In particular decisions can be made
both by the court and by the parties, without the CFR having an
opportunity to express an opinion on the child's behalf. CFR's
do not routinely attend court, even for final hearings, and many
cases are settled by means of agreements reached in the court
corridor.
28. Changes brought about by the recent
Adoption and Children Act, if implemented, are likely to increase
the proportion of cases in which children in private law proceedings
are made parties. Even without this the President of the Family
Division has indicated her desire to see children represented
more frequently, as is possible under existing Court Rules. This
will involve the appointment of a Cafcass officer to act as guardian
ad litem, working in conjunction with a solicitor, as in public
law proceedings. This has significant resource implications in
terms of both personnel and training.
A NOTE ON
"CONVERGENCE"
29. One of the potential advantages of an
integrated service is the ability to make more flexible use of
staff and it was always intended that, over time, those who had
previously worked, for instance, in private law, would be trained
to practise in public law and vice-versa.
30. Understandably this aim has been put
on hold over the past two years and I wonder whether it should
be further deferred, until more pressing issues are dealt with.
Research undertaken with a colleague at the time of the consultation
paper[18],
in which we interviewed practitioners who had worked as both guardians
and family court welfare officers, indicated that moving between
the two roles was feasible. However, while many of the skills
are transferable, the roles are very different and require specialist
areas of knowledge. Hence it was very clear that a substantial
programme of training and support would be absolutely vital. It
is doubtful whether Cafcass is in a position to do this properly
at the moment.
RESEARCH FOCUSING
ON THE
GUARDIAN AD
LITEM OR
FAMILY COURT
WELFARE SERVICES
2002-03 Director, Capturing guardian practice
prior to CAFCASS
2000-02 Director, Understanding Variation in the
time guardians ad litem take to complete care cases.
1999-01 Co-director, Family Perspectives on
Welfare reporting.
1998-99 Director: Practitioner Views on the
proposal to create a unified court welfare service (guardian ad
litem and court welfare services).
1989-90 Principal Researcher, Evaluation of
the Children's Society's Humberside Guardian Ad Litem Project.
1985-89 Principal Researcher, Representation
of the child in the civil courts (guardian ad litem and court
welfare services).
OTHER RELEVANT
RESEARCH
1998-99: Director, Professionalising Lay Justice:
the role of the court clerk in family proceedings.
1995-98: Co-Director, Outcomes of Judicial Decisions
in Child Protection Cases.
1991-95: Co-Director, Statutory Intervention
in Child Protection, the impact of the Children Act 1989.
SELECTED RELEVANT
PUBLICATIONS
Hunt, J., Drucker, N. and Gill, B. (2002): Understanding
variation in the hours guardians spend on care cases. Report to
the Department of Health.
Hunt, J., Drucker, N. and Gill, B. (2002): Factors
affecting the time guardians spend on care cases. A report to
CAFCASS. Oxford Centre for Family Law and Policy. Working Paper
Series 2002.
Hunt, J. and Bretherton, H. (2001): Informing
CAFCASS: A CAFCASS-commissioned exercise to log research and literature
on what were previously the family court welfare and guardian
ad litem services. Oxford Centre for Family Law and Policy.
Buchanan, A., Hunt, J., Bretherton, H. and Bream,
V (2001): Families in Conflict: Perspectives of children and parents
on the Family Court Welfare Service. Policy Press.
Hunt J. and Lawson J (1999): Crossing the Boundaries:
the views of practitioners with experience of family court welfare
and guardian ad litem work on the proposal to create a unified
court welfare service. National Council for Family Proceedings.
Hunt, J (1999): "A Combined Family Court
Service: Issues from recent research". Seen and Heard 9 (2)
17-32
Hunt J; Macleod A (1999): The Best Laid Plans:
Outcomes of Judicial Decisions in Child Protection Cases. The
Stationery Office.
Hunt, J., Macleod, A., Thomas, C. (1999) The
Last Resort: Child Protection, the Courts and the 1989 Children
Act. The Stationery Office.
Freeman P. & Hunt J (1998): Parental Perspectives
on Care Proceedings. The Stationery Office.
Hunt, J. & Murch, M. (1990): Speaking Out
for Children, Findings from the Voluntary Sector's First Guardian
ad Litem Project. The Children's Society.
Murch, M, Hunt, J., Macleod A. (1990): Representation
of the Child in the Civil Courts—Research Report for the
Department of Health, Summary of Conclusions and Recommendations,
Socio-legal Centre for Family Studies, University of Bristol.
Joan Hunt
Senior Research Fellow, Centre for Family Law and
Policy, University of Oxford.
March 2003
14 This was acknowledged in the consultation paper
which led to the creation of Cafcass Back
15
Hunt, J., Drucker N and Gill B (2002) Understanding variation
in the new guardian take to complete care cases. Draft Report
to the Department of Health. Oxford Centre for Family Law and
Policy Back
16
Hunt. J Drucker, N and Gill B (2002): Factories for the hours
guardians spend on care cases. Oxford Centre for Family Law
and Policy Working Paper Series Back
17
Hunt J. and Lawson J (1999): Crossing the Boundaries: the views
of practitioners with experience of family court welfare and guardian
ad litem work on the proposal to create a unified court welfare
service. National Council for Family Proceedings. Buchanan
A., Hunt J., Bretherton, H & Bream, V (2001): Families
in Conflict: Perspectives of children and parents on the Family
Court Welfare Service. Policy Press Back
18
Hunt J. and Lawson J (1999): Crossing the Boundaries: the views
of practitioners with experience of family court welfare and guardian
ad litem work on the proposal to create a unified court welfare
service. National Council for Family Proceedings. Back
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