Written evidence submitted by NAGALRO,
the Professional Association of Family Court Advisers and Independent
Social Work Practitioners and Consultants (CAF 43)
1. INTRODUCTION
1.1 NAGALRO is a professional organisation
whose aim is to promote all aspects of best practice within Family
Courts.
1.2 This submission focuses on the delivery
of services by CAFCASS within the public law arena, which is where
most of our members practice. We acknowledge that there are serious
problems in other areas of CAFCASS' responsibility and no doubt
these will be addressed by other organisations.
1.3 We highlight the:
— importance of the role of the Children's
Guardian
— high quality, low cost service which
CAFCASS inherited
— importance of practitioners having
substantial experience of child protection to retain credibility
and standing before the Courts
— need for high quality continuing
professional development of practitioner's skills and knowledge
1.4 The Guardian service has been widely
recognised as one of the successes of the Children Act, most recently
in the NSPCC review of legislation relating to children in family
proceedings (2003). The tandem model of social work and legal
representation for children in public law cases has been identified
internationally as best practice. Before CAFCASS was formed, the
Courts had a high opinion of the service Guardians provided to
assist the Courts to make decisions in contested and often distressing
situations.
1.5 Before April 2001, children involved
in public law proceedings were almost always allocated a Guardian
within 24 hours, throughout England and Wales.
1.6 The management arrangements for organising
and delivering Guardian services before CAFCASS were unusual within
public services. Guardian Panels were organised as flat, non-hierarchical
structures; there were arrangements for professional support from
the Panel and from colleagues, and for appraisal and review with
an independent professional element. The Panels worked effectively
and economically.
1.7 The legislation demands that the Guardian
carries personal responsibility to the court for work with the
child for whom they are appointed. Guardians have to be professionally
independent to do so. The flexible and individualised approach
of Guardians, where their interventions are tailored to the needs
of each child, has been the hallmark of the service. This did
not lead to profligacy: It led to a service where individual Guardians
took responsibility for deciding, usually with the child's solicitor,
what constituted necessary work for a child. The triennial accreditation
process ensured that those judgments could be professionally reviewed.
1.8 Financially, the responsibility for
the Guardian service rested with Local Authorities. This was clearly
inappropriate, as Local Authorities were parties in public law
proceedings. Nonetheless, most Local Authorities accepted the
Guardian service should be child focused, therefore treated it
as needs led, and so found funds as necessary to meet any overspend.
The full cost of the service was met out of the public purse.
1.9 NAGALRO favoured the creation of CAFCASS
and the removal of the service from local authorities. NAGALRO
hoped that the best aspects of previous practice would be incorporated
into the new service and looked forward to the benefits of a national
organisation at a time when demands on the service were increasing.
1.20 However, since CAFCASS took over responsibility
for the service there has been:
— an unprecedented deterioration in
the service to vulnerable children
— creation of a costly, bureaucratic,
top-heavy management structure
— lack of robust direction on strategies
from the Board
— insufficient recruitment of senior
staff to the organisation with expertise in the organisation's
core business
— poor decision making with devastating
consequences to the standing of the service
— a failure nationally to advocate
on behalf of children subject of public law proceedings, potentially
the most excluded in society.
1.21 NAGALRO, like many respondents to the
Consultation paper that preceded CAFCASS, NAGALRO favoured Model
C (para 3.7, Support Services in Family Proceedings, 1998) as
being the most likely model to serve the best interests of children
and build on what already existed. Sadly it was Model A which
was adopted; "a single hierarchical structure, operating
with strong control from a large centralised base with minimal
discretion in carrying out functions delegated to regions."
1.22 Repeatedly, Inquiries into child deaths
and abuse within the care system have shown that Social Services
and Health Authorities cannot be relied upon to protect children.
Organisational constraints and bureaucratic thinking militate
against social services and health workers being able to take
personal responsibility for safeguarding children. This has been
proven to be especially dangerous for children when it is combined
with poor professional practice.
1.23 The position of the Guardian before
CAFCASS, within the legal and social work framework, enabled them
to be proactive, authoritative and flexible and to exercise their
personal responsibility to the child. The proper exercise of the
role offers a significant protection for children, as long as
it can be exercised without being compromised by other interests.
1.24 CAFCASS has created a sudden and severe
decline in standards and quality of service afforded to these
most vulnerable children in society. Its approach to management
is replicating the worst of the bureaucratic structures of Social
Services Departments. More alarmingly, CAFCASS is seeking to limit
the service provided to children. In putting the needs of CAFCASS
as an organisation before the needs of individual children to
be adequately protected, it is undermining the effectiveness of
the role.
1.25 CAFCASS has failed to advocate for
children within government, instead seeking to ration the little
they receive. CAFCASS has failed to make effective use of its
resources, or to be guided by what has proved to work well in
the past. Radical changes have been implemented by CAFCASS with
no prior evidence of their likely success. Sound advice about
likely outcomes has been ignored.
1.26 CAFCASS has spent very considerable
sums on needless tiers of management and numerous, costly outside
consultants, (and at the present time wishes to spend even more),
than were never needed for either the Guardian or Court Welfare
Service. The Board, whose members (with one membership change
when the only child care judge resigned after a few months), have
presided over CAFCASS from the start, has apparently not felt
able to challenge the inexorable bureaucratisation of the service.
Meanwhile, service delivery measured by CAFCASS's ability to allocate
cases to experienced practitioners has nearly collapsed in some
areas.
1.27 Had the service continued as before,
NAGALRO believes that current difficulties would not exist. It
is CAFCASS's actions and attitude towards the children it was
meant to serve which has driven away the most experienced practitioners,
most of whom have found other ways to work with children. A survey
of NAGALRO's members in Summer 2002 found their major concern
was that CAFCASS no longer subscribed to the professional standards
and ethics which had hitherto been the driving force behind the
deeply committed workforce. Guardians, many of whom have practiced
in other social work fields as well as in public law as Guardians,
have known for a long time that this work was less well paid than
much of the other work available. Nonetheless, they have stayed
as Guardians until recently because it was felt there was a shared
commitment to the importance of the work.
1.28 Guardians said they felt they no longer
had any significant voice in the new organization, where communication
was abysmal. They felt decisions about how and when they should
carry out their duties were being made by administrators and managers
who had little knowledge or experience of the complicated tasks
required of a Guardian. For the first time they felt alienated
from the service.
1.29 Those practitioners need to be attracted
back to CAFCASS, to stabilise the situation, so they can assist
to develop the skills of a new work force of practitioners. To
do this we believe CAFCASS needs to make significant organisational
changes so that it can truly say it is "Putting children
first".
1.30 NAGALRO therefore recommends:
— a redefinition of CAFCASS as a NDPB
with proper independence from its sponsoring Department, the Lord
Chancellor's Department.
— an improvement in the Board's performance,
with the recruitment of those with professional expertise as members
— more openness about the Board's deliberations
and processes
— down-sizing of the existing management
structures and a reduction in central personnel, with local areas
holding more authority
— better resourced service delivery
from the savings within management
— creation of a credible structure
to enhance professional development
1.31 NAGALRO wants CAFCASS to put the interests
of children before the interests of itself as an organization.
Our disputes with CAFCASS in 2001 were never about pay, although
CAFCASS and the Lord Chancellor's Department continue to assert
this, perhaps to cover up their own failings. The alleged demands
of the Inland Revenue were used by CAFCASS to mask their own misguided
and illegal decision-making. NAGALRO's advice to build on the
known success of effective arrangements for service delivery was
ignored. A short-term approach was favoured by CAFCASS. No pilot
schemes were conducted before major change was forced through.
The consequence is a diminished service whose credibility and
standing is being destroyed.
1.32 NAGALRO remains prepared to work with
CAFCASS to ensure that children's interests are safeguarded and
represented by professionals who are fully capable of exercising
professional judgment and working independently within a quality
service.
1.33 For additional information, there are
documents on the NAGALRO website: www.nagalro.com which complement
these submissions. We are enclosing editions of Seen and Heard,
our journal, which Committee members may find helpful in placing
these issues in an historical and professional context.
2. CHRONOLOGY
This is provided as a framework—more information
about many of these events is elsewhere in this submission
| 1974 | Maria Colwell report
|
| 1975 | Children Act (introduces Guardians ad litem)
|
| 1984 | Guardian ad litem and Reporting Officer [GALRO] Panels established under local authority control (May)
|
| 1989 | Children Act (implemented October 1991)
|
| 1991 | GALRO Panel regulations—under local authority control
|
| 1991 | Judicial Review of Cornwall CC concerning independence of Guardians
|
| 1998 | Green Paper—Support services in family proceedings—future organisation of Court Welfare Services (July)
|
| 1999 | Lord Chancellor's Department sets up Project Team (Sept)
|
| 1999 | Project Team sets up issue based Task Teams (Oct-early 2001)
|
| 2000 | Criminal Justice and Court Services Act creates Cafcass (Nov)
|
| 2000 | Cafcass Chairman, A Hewson, appointed (November)
|
| 2001 | Cafcass Board appointed (February)
|
| 2001 | Cafcass vesting day (1.4.01). Chief Executive, D Shepherd, in post
|
| 2001 | Director of Operations, J Kuypers, dismissed (August)
|
| 2001 | HHJ Fricker resigned from Board (September)
|
| 2001 | Judicial Review of Cafcass decision making process (Sept)
|
| 2001 | Chief Executive suspended (succeeded by J Tross) (October)
|
| 2002 | Chief Executive dismissed (July)
|
| 2002 | New contracts for all practitioners issued by Cafcass (April)
|
| 2002 | D Bernstein of Monarch Airlines appointed to Board
|
| 2002 | Adoption and Children Act [s122 expands role of Guardians to private law]
|
| 2003 | Judicial Review of Cafcass concerning appointment of Guardians (January)
|
| 2003 | Select Committee inquiry into Cafcass (March)
|
| |
3. THE DUTIES
OF THE
CHILD'S
GUARDIAN
3.1 The Children's Guardian is an independent professional,
appointed by the Court, who has the dual role of safeguarding
a child's best interests and of representing the child's wishes
and feelings. The Guardian "shall be under a duty to safeguard
the interests of the child" [Children Act 1989 s.42(2)(b)].
3.2 The need for an independent voice to speak for the
child in care proceedings was highlighted by the Maria Colwell
Inquiry (1974), which considered how it was that a young girl,
in the care of a Local Authority, could be returned, with the
approval of the Court, to her mother and step-father, where she
was killed. It emerged that Maria was fearful of her step-father,
but no professional had asked her views or examined her circumstances
directly. The Local Authority had then, as now, much wider responsibilities
than to the individual child; the Local Authority has "the
general duty to safeguard and promote the welfare of children
within their area who are in need" [Children Act 1989 s.17(1)(a)].
Recognising this tension, the role for Guardians as professionals
responsible for individual children was written into the Children
Act as an extra means of protecting very vulnerable children,
many of them very highly at risk.
3.3 From these beginnings a quarter of a century ago,
the Guardian emerged, charged with a personal professional responsibility
to the child and to the Court in family proceedings. Their initial
value was recognised and the role extended by the Children Act
1989: "the court shall appoint a Guardian ad Litem for the
child unless satisfied that it is not necessary to do so to safeguard
the best interests of the child" [(s41(1)]
3.4 Most recently the Adoption and Children Act 2002
further extends the role of the Guardian, by increasing the range
of family proceedings in which they can be appointed. Appointments
will include complex private law cases, although the nature of
these cases has yet to be defined.
3.5 CAFCASS is asked by the Court for the name of an
available Guardian; the Court then makes an Order appointing that
Guardian, by name, for the individual child. The Guardian is responsible
to the child and the Court. CAFCASS is not part of this chain
of responsibility.
3.6 The Guardian must be a well informed and professional
sceptic, whose main role is to ensure that the Court and parties—who
are all adults, with adult legal representatives and adult pre-occupations,
many of whom have never met the child—do not lose sight
of the child, the child's wishes and the child's best interests.
The Guardian must pay attention to the plans for the child not
only within the timescale of the proceedings, but also looking
forward to ensure that the plans will last until the child's majority,
3.7 The Guardian must be aware of the potential tension
between the child's rights and welfare, the wishes of the parents
as against the needs and wishes of the child, and the merits of
the Local Authority's application, evidence, actions and plan
for the child.
The Guardian must try to balance the conflicting pressure
of all of these in the interests of the child.
3.8 The Guardian must consider whether the conduct of
Social Services Departments and other agencies has been honest,
open and fair, whether parents or child has faced discrimination,
and whether they have been provided with appropriate services
to respect the diversity of their language, culture, religion
and/or disability.
3.9 The Guardian must consider visiting all who have
been involved with the child, seek out, where relevant, extended
family members who might provide care for a child or might have
valuable information, and attempt to liaise and negotiate with
all parties in the hope of reaching an agreed Care Plan for the
child. To complete the work the Guardian must prepare a detailed
report and be prepared to give evidence supporting her position
in Court, sometimes in very testing circumstances.
3.10 To make this possible, Court Rules directed that
the Guardian "shall make such investigations as may be necessary
for him to carry out his duties and he shall, in particular, contact
or seek to interview such persons as he thinks appropriate or
as the Court directs." [Rule 11.9].
3.11 Confirming the need for the Guardian to be able
to focus exclusively on the needs of the child, independent of
outside interference, the then President of the Family Division,
Sir Stephen Brown, in his judgment in the Judicial Review of Cornwall
County Council's attempt to control the work of Guardians, said
"I wish to emphasise how vital it is for Guardians not only
to be seen to be independent, but also to be able to be assured
themselves of their independence in the carrying out of their
duties."
3.12 Throughout their work for a child, the Guardian
is working with, and usually instructing, a solicitor from the
Law Society Children Panel, who is there to represent the child
and her rights, rather than her welfare. This tandem model of
representation is much envied by other countries.
3.13 Guardians need substantial experience in Local Authority
child protection work. They must have credibility with the Courts
when they critically appraise Local Authority Care Plans, and
also be able to identify what is lacking and negotiate a better
outcome for the child, ideally in advance of a Hearing.
3.14 NAGALRO believes prudent and purposeful use of time
is an essential part of the professional role. Good quality assurance
mechanisms, such as appraisal by senior experienced professionals,
were established in many areas to help ensure cost-effective service
delivery.
4. CAFCASS' IMPACT ON
GUARDIANS' ABILITY
TO MEET
THEIR DUTIES
4.1 CAFCASS' actions continue to demonstrate their determination
to increase the proportion of employed staff under direct management.
This has led to a distortion of the independent role of the Guardian
to the detriment of children.
4.2 CAFCASS managers are encouraged to impose workloads
on employed staff, which compromise their focus on the individual
child. Increased numbers of cases held by each employed Guardian
leads to increased delays because of the Guardian's lack of availability
for Court dates, as well as a less thorough investigation for
each child. Managers' insistence on centrally imposed throughput
and targets, can distort case focus and can reduce the potential
for Guardians to protect the child's interests. (It was concern
about these developments that led to NAGALRO's successful Judicial
Review application in September 2001.)
4.3 CAFCASS, on the other hand, has seen itself not as
a child led service but as a budget led service: "CAFCASS
must have regard to its responsibility to meet the needs of all
children and families involved in both public and private law
proceedings out of its finite budget." [C. Prest, Director
of Legal Services, CAFCASS, 10.02] and "It is no good providing
the best possible service to one child if it means providing a
less than adequate service for a number of others." C Prest,
8/02
4.4 Such statements by CAFCASS assume that there is a
ring fenced budget for Guardians, whereas the reality is that
a significant proportion of the budget is now spent on management
structures which had not existed between 1984 and 2001
4.5 Even with such a significant increase in management
and administration, or perhaps because of it, CAFCASS has not
been able, in the two years since its inception, to provide Guardians
for applications, when the old service managed this for 17 years.
Latest figures given by the Chief Executive are that well over
600 cases are unallocated, and that CAFCASS is not keeping up
with new cases coming in from the Courts.
4.6 Such statements also confuse and conflate the role
of CAFCASS with the role of the Guardian; Guardians are under
a duty to safeguard the individual child. CAFCASS, like Local
Authorities, has a general responsibility to children requiring
their services, but the two are not interchangeable. The Guardian
is personally appointed by the court and is the individual with
the personal and professional responsibility for the child's welfare.
4.7 It is this professional responsibility, as exercised
by the individual Guardian, which is the raison d'etre of the
role. Remove it and the protection of the child's interests in
the Court process would be irretrievably damaged.
4.8 Following a recent [January 2003] unsuccessful Judicial
Review of CAFCASS's inability to provide Guardians in a timely
manner, CAFCASS reported: "CAFCASS acknowledged that Guardians
were important to such proceedings, that it sought to appoint
them as soon as possible, and that the welfare of children meant
that the sooner this was done the better. CAFCASS did not question
the desirability of providing a Children's Guardian from the start
of specific proceedings but disputed an absolute statutory obligation
to do so." [CAFCASS monthly bulletin, February 2003]
4.9 Since that judgment, there has been talk at the very
highest levels of CAFCASS of directing Guardians to work only
episodically in care proceedings, perhaps at the first hearing
and then again towards the end, when the report has to be completed.
Thereby every child can have a bit of a Guardian from time to
time, rather than some having none.
4.10 Children cannot be partially protected; they are
either protected or they are not. Guardians were put in place
by legislation to safeguard children's interests, because it was
recognised that Social Services Departments were unable to fulfil
this role adequately. CAFCASS as an organisation is now looking
at all children in all Family Proceedings, seeing the whole as
more important than the individual child.
4.11 CAFCASS is thereby dangerously mirroring the actions
of Local Authorities and is at risk of failing to protect the
individual child as well children generally. A Guardian can only
truly safeguard a child's interests by working alongside that
child throughout the proceedings.
4.12 CAFCASS may have been burdened from the outset by
the need to incorporate the employment rights of what were then
approximately 64 employed managers from the Family Court Welfare
Service, who wished to transfer to CAFCASS. These managers had
always worked within an employed, hierarchical management structure.
Their understandable urge was to recreate what they knew best.
4.13 The lightly managed, autonomous self-employed Guardian
practitioners could not and did not fit in with their vision for
CAFCASS, in spite of assurances given by the Project Team Director
in 2000 that `light touch management' was the way forward.
4.14 Appointment criteria for managers within the new
CAFCASS structure favoured those who were managers of Court Welfare
Services. Some of the best former Guardian ad Litem Panel Managers
left the service and continue to do so. They took with them their
experience of distance management of independent practitioners,
which CAFCASS badly needed. Also lost was their expertise in the
maintenance and development of training and professional standards,
particularly within the public law field. The "light touch"
has been all but lost, to the detriment of the service.
4.15 CAFCASS' decisions about how to manage their business
have prompted many of the most experienced and skilled practitioners
to leave. Instead of attempting to find out why they have been
driven away, and working to encourage them to return, CAFCASS
has resorted to recruiting practitioners without adequate child
protection or general social work experience. CAFCASS has not
valued, and has thereby lost, much of the extensive previous experience
and knowledge of long serving practitioners.
4.16 CAFCASS may have expected recruitment to be easy,
but has found this not to be the case. There is a dearth of practitioners
with the right background and experience to do the job at the
expert level required. Only those social workers with considerable
child protection experience, who have an ability to understand,
and, where necessary, challenge, the role of child welfare organizations,
together with a good understanding of the law and court processes
can become, given good quality training and support, a potentially
competent Guardian.
4.17 New and inexperienced recruits have received a poor
or non-existent induction programme with inadequate professional
support systems in place. This leads to demoralisation, and increased
potential for dangerous practice.
4.18 The good reputation of the Guardian service, built
up over seventeen years, has been seriously damaged in less than
two. How has CAFCASS achieved this when it had such a positive
professional inheritance?
5. THE LOSS
OF PROFESSIONAL
DEVELOPMENT AND
TRAINING AS
AN ESSENTIAL
ELEMENT IN
CHILD PROTECTION
5.1 NAGALRO has advised CAFCASS since 1999 that there
needs to be a powerful, well integrated professional development
strand in the organisation. This has been ignored, in favour of
more operational managers.
5.2 NAGALRO has worked hard to promote the development
of a serious Induction Training Programme for new recruits to
CAFCASS, of the same standard as one developed successfully over
many years to induct new Panel Guardians, called "Paramount
Welfare", commissioned by the Department of Health from NAGALRO.
The project was dropped before completion in March 2001, with
nothing to take its place. Why was this done, in an organisation
that claimed to want high professional standards of practice?
5.3 It was subsequently decided that new recruits to
CAFCASS should be capable of both private and public law practice.
The appointment criteria were reduced to three years post-qualifying
social work experience, with no necessary child protection experience.
CAFCASS also decided that a three day Induction Training Programme
should cover both public and private law, when public law had
previously taken up three days alone.
5.4 NAGALRO advised against this approach and provided
a critique of CAFCASS' proposed programme, which is summarised
below.
The proposed Induction Training Programme reveals a tension
between the requirements of CAFCASS to disseminate large amounts
of information in a short space of time (three days), and the
principles of adult learning. NAGALRO, therefore, while supporting
the return of Induction Training, is unable to endorse this programme
in its existing format.
The danger is that the Induction Programme as it stands will
give a false sense of security. CAFCASS management may believe
that this course will equip new members of staff to carry out
their designated roles but they may, instead, feel deskilled.
Individual participants may feel overwhelmed and be ill prepared
for the challenges of their new roles. When they are giving evidence,
the inadequacy of their training may emerge to the detriment of
the individual and the children they are meant to safeguard. This
will undermine confidence in CAFCASS as an organisation committed
to providing a high quality service.
5.5 NAGALRO made observations on the content of the course,
the way in which diversity issues were tackled, the wasteful use
of many trainers and the lack of opportunity in the programme
to consolidate learning. CAFCASS has nonetheless decided to proceed
and no longer invites NAGALRO representatives to attend planning
meetings.
5.6 This exemplifies a major difference between the old
service and the new: previously the service was based in large
measure on collaboration and professional support between managers
and Guardians, with a shared aspiration for high standard child
centred practice. Now CAFCASS has introduced an alienating and
distrustful heavy-handed management structure designed, not to
support such practice, but to interfere in it, not for child centred
reasons, but in order to meet organisational goals.
5.7 Why has CAFCASS done this, and why has the Board
and the LCD not recognized the damage that is being done?
6. NAGALRO'S ATTEMPTS
TO ASSIST
CAFCASS
6.1 NAGALRO has given its backing to the establishment
of CAFCASS from the beginning. NAGALRO enthusiastically responded
to the 1998 government consultation paper "Support services
in family proceedings". The list below illustrates the many
contributions made since by NAGALRO.
6.2 Our aim throughout has been to ensure that services
to children involved in the Family Courts continued to be delivered
to a good professional standard.
6.3 NAGALRO had hoped to improve service delivery, but
has instead witnessed the depletion of expertise and the dismantling
of formerly effective services.
6.4 Before Vesting Day on 1 April 2001:
(a) Drafting amendments to the Criminal Justice and Court
Services Bill 2000.
(b) Full participation in the Task Teams established
by the LCD Project Team, including Training and Professional Accreditation,
Diversity, Roles and Responsibilities, Information Technology,
National Standards, etc.
(c) Participation on the Project Development Group representing
stakeholders.
(d) Establishment and co-ordination of the Induction
Training Group to unify training across public and private law
practice.
(e) Participation in key planning groups to enhance co-ordinated
practice in England and Wales, such as the group addressing report
writing, to develop agreed standards.
(f) Submitted paper regarding the proposed management
structure, urging CAFCASS to adopt a flat, cost-effective management
structure.
(g) NAGALRO participation in the selection to the Board
Chair and Board members. NAGALRO was not asked to contribute to
the selection of the Executive Team.
6.5 1st April 2001 to September 2001:
(a) Liaison meetings with the new Chief Executive and
her Team as well as with the new Board Chair.
(b) National consultation with NAGALRO members to ascertain
their response to CAFCASS's contractual proposals.
(c) Mounting of successful Judicial Review of the CAFCASS
decision-making process regarding self-employment.
6.6 September 2001 to March 2002:
(a) Participation in weekly consultation meetings with
the Executive Team for almost four months, chaired by an independent
conciliator, to establish new contracts and working arrangements
to attempt to ensure professional standards were maintained.
(b) Co-operation and facilitation of Joan Hunt's research
on the variation in the time Guardians were taking to complete
Care cases.
(c) Drafting and presentation of proposals, principles
and discussion documents to CAFCASS concerning contracts for self-employed
service delivery, conflict of interests, etc.
(d) Draft contracts for self-employed service delivery
were also produced.
(e) The Board was addressed by two members of the NAGALRO
Council and offers were made to familiarise Board members with
the work of Guardians.
(f) NAGALRO sought independent expert advice regarding
the tax issues associated with different styles of self-employment
contracts, including a formal cross-interest meeting with a senior
representative of the Inland Revenue. This expert advice was made
available to CAFCASS.
(g) NAGALRO was unable to persuade CAFCASS to produce
costings for different options for self-employment or employment
as models of service delivery.
(h) NAGALRO was unable to persuade CAFCASS to pilot their
new proposals for major changes to the previously successful working
arrangements. They embarked on these changes with no measure of
their likely success.
(i) NAGALRO has encouraged its members to fully participate
in local and regional Inspections, as these arise
(j) Throughout this process, NAGALRO kept its members
informed of these developments and sought their views of proposals
and changes being made by CAFCASS, whilst CAFCASS's own communications
with service providers was and has remained poor. Local meetings
were organised and facilitated by NAGALRO Council members.
6.7 April 2002 to March 2003:
(a) NAGALRO has encouraged its members to consider the
contracts on offer carefully and to choose the arrangement best
suited to each individual's circumstances.
(b) NAGALRO's Team has continued to meet at approximately
six weekly intervals with a changing group from the Executive
Team.
(c) NAGALRO has commented on CAFCASS policy documents
as these are produced, for example regarding `National Standards'
for service delivery and early work on National Standards and
Complaints.
(d) NAGALRO has sent representatives to national groups
established by CAFCASS on issues of professional concern such
as Induction training and information systems.
(e) NAGALRO has provided advice to CAFCASS on ways of
reducing waiting lists, and of encouraging former Guardians to
return.
(f) NAGALRO has made proposals for professionally based
mentoring, appraisal and training schemes.
(g) NAGALRO has provided training seminars and conferences
for a national audience of CAFCASS practitioners and others involved
in the Family Courts.
(h) NAGALRO conducted a survey of the attitudes of its
members to CAFCASS's remuneration schemes to form an informed
basis for the Autumn 2002 pay review.
(i) NAGALRO has contributed to speedier allocation of
priority cases in London by collating information to allow informed
allocation and distributing this to our members.
(j) NAGALRO continues to inform its members of developments
in practice and research and to share resources quickly through
Internet communication and regular mailings.
(k) NAGALRO continues to produce a quarterly professional
journal, "Seen & Heard", which provides academic
and practice based review of issues and law for practitioners
and Children Panel solicitors.
7. FINANCIAL ISSUES
Prior to the establishment of CAFCASS
7.1 In September 1999, the Lord Chancellors' Department
set up a wide-ranging and costly structure under the aegis of
a Project Team headed by David Lye. A Project Development Group
ran intermittently from September 1999 to its dismissal in December
2000, with representatives from the Department of Health, formerly
responsible for the Guardian Service, the Home Office, formerly
responsible for the Family Court Welfare Service, and the Lord
Chancellor's Department, along with representatives from the Probation
Service and the Court Service. The Project Development Group had
a large representation from the Court Welfare Service and the
Probation Service. The Guardians had two representatives and there
was one Panel Manager. Legal, academic and judicial stakeholders
met with the Project Team separately.
7.2 A number of separate Task Teams were initiated to
look at core functions in the hope of reaching agreed set of policies
and procedures by vesting day on 1 April 2001.
7.3 Extensive and expensive work was done on the following:
— Convergence between the Court Welfare and Guardians
roles over time.
— Complaints and standards.
— Issues arising out of self-employment.
— Information leaflets for families and children.
7.4 After CAFCASS vesting day, this work was apparently
ignored by the Board and Executive Team. Fifteen months of collaborative
work was thereby squandered.
7.5 The time for establishing CAFCASS was always understood
to be short, but this purposeful disregard of the planning and
preparation which had been done meant continuity and a great deal
of goodwill was lost by the Board and Executive Team. It also
set a much repeated precedent; CAFCASS has often disregarded previous
successful practices.
Since the establishment of CAFCASS
7.6 The CAFCASS Annual Report for 2001-02 shows that
£3.2 million was spent on outside consultants and professional
adviser fees. This included payments for:
— The recruitment of the former Chief Executive
who worked in that role for about six months before being suspended.
— Producing the CAFCASS logo, where the outer "C"
does not reproduce in photocopies, and is expensive to print,
in an organisation dependent on home workers.
— Surveying existing properties and finding new
ones. Many of the best situated and equipped premises were in
fact retained by Probation. There is continued uncertainty for
many areas and sections of CAFCASS about where they will work,
two years after vesting day. Safe, well monitored interviewing
space for public law practitioners has not generally been made
available, although this was originally said to be one of the
most significant potential areas for improvement through a national
organisation.
— IT systems; a Support Infrastructure Group met
during 2000-01 to develop plans and specifications for management
information systems. Consultants were engaged at great expense
but the work was halted as no consensus about specifications and
needs was ever reached. Another group is now covering much the
same ground. Issues about purpose, cost and funding have yet to
be resolved. Five million pounds has been spent to date on these
projects (PQ 24 02 03) with no discernible benefit for children
or families.
— A series of expensive, external, short-term consultants,
one after the other, to consider training. The original work of
the Training Task Team, including costed training plans, has been
repeated more than once.
— Change of payroll provider in February 2003.
— Accountants were paid in 2001 to provide advice
about Inland Revenue matters as they affected self-employed guardians,
which was disputed and created confusion and unnecessary conflict.
— Solicitors were asked to produce contracts for
self-employed contractors in 2001. These were never used.
— Extensive legal fees were incurred during 2001,
including meeting CAFCASS' and NAGALRO's Judicial Review fees
7.7 Considerable amounts have been squandered in relation
to human resources, including:
— Staffing at CAFCASS headquarters cost £3.5
million in 2001-02. This requires scrutiny in a modern NDPB. The
proliferation of staff at headquarters continues. There is no
evidence of increased benefit to stakeholders or children and
families of the current layers of management, with yet more proposed.
— There was a high cost to fund Board members' activities
at £249,000 in 2001-02, including £89,000 paid to the
part-time Chair.
— CAFCASS spent £376,000 in the last financial
year on recruitment advertising for practitioners; advertising
required for former GALRO panels and the Court Welfare Service
was limited both in frequency and cost.
— Self-employed providers have lost confidence in
CAFCASS's intention to retain them. At least 25% of the previous
guardian work force have stopped working for CAFCASS, with a further
substantial proportion significantly reducing their availability
to take new work. This loss of experienced practitioners is a
waste of scarce human resources.
— CAFCASS failed to capitalise on the recently improved
fee structure for self-employed guardians; in spite of repeated
advice by NAGALRO, no efforts were made to ensure that Guardians
who have left knew of the changed terms.
— Agency staff were appointed in London with significant
extra costs; (such a practitioner costs twice that of a self-employed
practitioner). Goodwill of existing practitioners, from whom CAFCASS
needed continuing loyalty, was lost as novice agency practitioners
were being more highly remunerated than those with considerable
Guardian experience
— Excessively lengthy suspension and subsequent
dismissal of the Chief Executive, preceded by the dismissal of
the Director of Operations, has wasted resources and undermined
confidence.
— Series of temporary appointments to key roles
in operations and communications roles.
7.8 Money has been wasted on publications and equipment,
such as:
— Usable leaflets for children, parents and other
parties have been slow to be produced, despite the availability
of good quality examples already in existence around the country.
— Money was provided to the NSPCC to assist in the
production of Powerpacks for children and young people, which
made no use of previous GALRO Panel material and required a media
event involving pop singers and the Prime Minister's wife to launch
it. The Powerpacks have not been widely used by practitioners
to date.
— Glossy covers were produced in an ill conceived
attempt to make court reports uniform, at a cost of £5,500.
The wrong size were cut-out; they could not be copied and so were
abandoned.
— Home office equipment and furniture packs were
provided for employees and then made redundant as staff abandoned
home working. Others did not get essential equipment such as a
desk or telephone for months.
— Glossy CAFCASS News, ridiculed by practitioners
and stakeholders, was abandoned after several issues.
7.9 There were some early financial shortcomings by the
LCD and CAFCASS management, including:
— Failure to appreciate the need to pay VAT when
purchasing certain goods. CAFCASS had to find three million pounds
to meet this extra cost.
— Failure to provide sufficient resources for the
rental of office accommodation in the initial budget.
— Failure to budget adequately for start up and
transitional costs.
7.10 CAFCASS' has consistently failed to calculate the
comparative costs of employees as compared to self-employed contractors.
— The Board did not obtain comparative costings
before accepting the recommendation of the Chief Executive to
dispense with self-employment. The decision-making process was
flawed and resulted in NAGALRO's successful Judicial Review in
September 2001, with its associated costs.
— CAFCASS has rejected NAGALRO's requests to do
comparative costings. (Previous work done by Panels demonstrated
that self-employment was more cost-effective, as well as being
better able to respond to the changes in demand.)
— It is still difficult to compare information about
the costs of employed and self-employed practitioners because,
somewhat surprisingly for an organisation dependent on both sources
for their workforce, the Annual Report 2001-02 does not distinguish
between them.
7.11 An organisation which now has five tiers of management
(Board, Chief Executive, Executive Team, Regional managers, Area
Managers) has presided over a large number of financial decisions,
very few of which seem to have produced any benefit for children
or young people.
8. RECOMMENDATIONS—A
WAY FORWARD
FOR CAFCASS
8.1 CAFCASS' raison d'etre is to enable professional
practitioners to advance children's interests in the Family Courts.
This is expressed in its primary duty laid down by the Framework
Document—"To safeguard and promote the welfare of the
child", and in the strap line used on all CAFCASS' publicity—"Putting
Children First".
8.2 What follows is designed to enable these aspirations
to be put into practice, particularly in respect of children involved
in public law cases.
STRUCTURAL ISSUES
8.3 The lines of accountability need clarifying and changing.
There is a confusion of accountability within CAFCASS which prevents
the Board from playing an effective role.
8.4 CAFCASS as an NDPB needs an independent arms length
relationship from its sponsoring government department. In light
of what has happened to date, members of the Committee may wish
to consider whether it is appropriately placed with the Lord Chancellors
Department (LCD), or whether it would more properly placed with
the Department of Health, where it might have better access to
relevant professional expertise to support the organisation.
8.5 NAGALRO considers that some of the roles taken by
the Executive Team, the LCD and the Board during the process of
the dismissal of Mr Kuypers and Ms Shepherd in 2001, about which
the Committee will no doubt be questioning all parties, and the
expenditure during that period, demonstrate these difficulties
to the full.
8.6 The relationship between the Board and its sponsoring
Government Department needs to be redrawn, so that the Board can
be demonstrated to be an independent body, as was originally intended
(see Parliamentary answer of Jane Kennedy, 11.4.01, "making
a separation between the developers of family law policy and a
service advising the court on the welfare of children").
8.7 As a public body the Board needs to ensure its deliberations
are open and transparent. In recent months, since October 2002,
minutes of its meetings have not been made available, and the
"summary" provided does not even mention who attended,
even less what was said. There is concern about why has this reduction
in open information was been made, and who made the decision.
8.8 The lines of accountability between the Board and
the Executive Team need to be redrawn so that the Executive is
clearly accountable to the Board, and through the Board, (but
only through the Board), to the sponsoring Government Department.
8.9 CAFCASS' current structures should be re-organised
and simplified so that, while it exercises responsibility for
managing the provision of public law practitioners, it does everything
necessary to enable the providers to act as independent professionals,
capable of safeguarding the interests of children.
MANAGEMENT ISSUES
8.10 For the Board to carry out effective oversight of
the Executive, it must have more members with knowledge of the
core tasks. New Board members should be appointed who bring experience
and knowledge of working within the Family Courts, such as Guardians,
Family Court Reporters, Children Panel Solicitors, Magistrates
and Judges.
8.11 The Board requires this expertise to meet the requirements
for governance as suggested in the recent Victoria Climbie Inquiry
Report: "Elected councillors [the Board] and senior officers
[Executive Team] must ensure they are kept fully informed about
the delivery of services .. and they must not accept at face value
what they are told".
8.12 The Executive and management, within the organisation
itself, should devote its energies to delivering the service which
is its raison d'etre, rather than developing organisational structures
which are costly and remove accountability too far from where
decisions are needed. A one layer, local structure, supported
by a small committee of expert professional advisors, has a proven
record of offering successful, `light touch' management.
8.13 The organisation should enable and support practitioners,
both employed and self employed, to deliver the service to children,
families and the courts in the most effective manner. This does
not require the many-layered hierarchy which has become a mark
of CAFCASS' development to date.
8.14 The management function of headquarters is to ensure
that the regions are appropriately resourced and serviced, so
that they are able, in the most cost effective manner, to allocate
cases, recruit practitioners, check claims, and arrange regular
professional appraisal, training and support. The HQ should be
responsible for overall financial management. These tasks do not,
in our view, require more than two tiers of management, as well
as competent administrative staff.
8.15 In carrying out its management function, CAFCASS
HQ and the Board would always need to consider whether any financial
or managerial decision had the potential to impact on service
delivery—that is, to effect the quality of work done with
and for children.
8.16 Central to the function of HQ is their professional
development function, something that has been almost entirely
ignored in CAFCASS' development.
8.17 This could be under the auspices of a Professional
Development Unit, advising the Executive team and the Board. It
could encompass areas of responsibility such as developing national
standards, commissioning research, identifying training needs,
developing professional relationships with other bodies and agencies,
including government departments. It would ensure that any IT
developments were designed primarily to facilitate better service
delivery. It would provide legal and social work advice to practitioners
and could incorporate the current Legal Section. Coherent systems
of professional mentoring and appraisal could be developed here.
Each region could have a professional advisor, who would also
act as the CAFCASS representative to local Area Child Protection
Committees, or their successor bodies.
8.18 A better balance between the number of self-employed
and employed practitioners needs to be achieved in each Region
to ensure that the benefits of both types of service delivery
can be exploited by CAFCASS. The skills of managers with practitioner
expertise could usefully be redirected to practice to reduce the
overall number of managers.
PRACTICE ISSUES
8.19 If CAFCASS were to reorganise in this way, it could
look in large measure, to its experienced practitioners for the
provision of mutual professional support, mentoring, and training,
as the GALRO panels did before.
8.20 Guardians would only be recruited if they have already
had a considerable career in social work, and would be expected
to be able to demonstrate that they have a capacity to work independently,
competently and efficiently, while maintaining the child at the
centre of their professional practice. They would receive appropriate
training before being accredited as Guardians.
8.21 Guardians would continue to have individual responsibility
to the Court for their work with and for an individual child,
and the totality of their work could be assessed through a rigorous
professional appraisal scheme. Managers would oversee the business
aspects of practitioners' work.
8.22 There would continue to be the separate and very
different roles of Guardian and Family Court Reporter; to be able
to practice in both roles would require appropriate training in
each specialism.
8.23 Care and adoption would be recognised as a continuum,
requiring background experience and knowledge so that only those
accredited as Guardians would take on adoption cases, including
as Reporting Officer. Only then can children subject of irrevocable
adoption proceedings be given sufficient protection.
8.24 We anticipate that such changes could well have
the effect of encouraging a return to CAFCASS of many of the practitioners
who have left. This would meet the needs of children in court
proceedings, many of whom are currently on waiting lists, while
the next generation of CAFCASS practitioners gain experience in
Social Services and voluntary agencies.
8.25 CAFCASS should recognise the potential released
by self employed practitioners developing expertise in a wide
range of other roles, which all go to improve their practice in
working for the children CAFCASS is set up to serve.
8.26 Guardians who treasured the professional independence,
personal responsibility and high standards under the old Panel
arrangements, and who left when they saw it being threatened by
CAFCASS' bureaucratic arrangements, should be persuaded that a
renewed CAFCASS sees the future in enabling them to develop their
child protection practice within public law proceedings rather
than in other areas of social work.
Susan Bindman
Chair on behalf of the NAGALRO Council
14 March 2003
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