Written evidence submitted by Raymond
Adrian Porter, Head of Family Unit, Archer's (CAF 45)
INTRODUCTORY
1. My name is Raymond Adrian Porter. I am
a Partner in Archers, Solicitors, Barton House, 24 Yarm Road,
Stockton on Tees, TS18 3NB. I specialise in children cases, particularly
Care Proceedings, but I also act in Private Law matters.
2. My background is that I studied for a
Degree in Law at Cambridge University, graduating in 1976 before
joining a "High Street" firm of Solicitors in Middlesbrough
as an Articled Clerk, subsequently being admitted as a Solicitor
in 1979.
3. In that Middlesbrough firm of Solicitors,
I was initially engaged in a broad spectrum of contentious work,
including personal injury cases, criminal work and family work
(including, even at that early stage, representing children in
Care Proceedings brought by the Local Authority under the Children
and Young Persons Act 1969). I left that firm in 1983 and, for
the next three years, worked for the County Prosecuting Solicitor's
Office in Cleveland, firstly as an Assistant, then later a Senior
Prosecuting Solicitor. Just before the introduction of the Crown
Prosecution Service in 1986, I accepted an invitation to join
Archers Solicitors in Stockton. Originally my workload at Archers
included personal injury and criminal cases in addition to family
work, but the need increasingly to specialise has meant that I
now have an entirely Family caseload.
4. I became a Partner in Archers in 1991.
The firm is divided into Units (eg Wills, Probate and Trusts Unit,
Property Unit, Commercial Unit etc) for ease of administration
and because of the need to specialise within legal practice. I
am the Head of the Family Unit at Archers and, apart from myself,
the fee earners in the Unit comprise three more Solicitors, a
Fellow of the Institute of Legal Executives and a trainee (studying
towards qualification as a Legal Executive).
5. Apart from the three years between 1983
and 1986 when I worked as a Prosecuting Solicitor, since my Admission
in 1979, I have been engaged in children cases. This included
both Private Law and Public Law cases. Private Law matters involve
disputes between parents or other family members in connection,
for example, with Residence/Contact/Parental Responsibility in
relation to children. Public Law proceedings involve a Local Authority
bringing Child Protection applications to the Court (for example
applications by a Local Authority for Care/Supervision/Secure
Accommodation Orders).
HISTORY
6. My recollection is that, when I was first
admitted a Solicitor, Guardians were not always appointed for
children in Care Proceedings. The Local Authority might have obtained
a Place of Safety Order as a matter of urgency, and Care Proceedings
(which were often concluded very quickly) followed under the Children
and Young Persons Act 1969. Instructions to act on behalf of a
child might be received simply because one happened to be present
in the Court building when the case first came before the Court.
Parents, and children, at that time effectively had the benefit
of criminal Legal Aid granted by the Office of the Justices' Clerk.
Looking back on it now, it seems almost frightening that a twenty
four year old Solicitor, without children, and still living at
home with his parents, should have been negotiating with Social
Workers over whether or not a Supervision Order would adequately
protect a child as opposed to a Care Order without (in most cases)
assistance from a Guardian ad Litem, as they were then known.
7. Increased concern as to the way in which
Child Protection issues have been dealt with has given rise to
a number of public enquiries, which in turn have given rise to
changes in procedures and/or the law. This has included the almost
invariable practice of appointing Guardians ad Litem (now known
as Children's Guardians) in Public Law cases, the setting up of
the Law Society's Children Panel (to identify Solicitors specialising
in children cases) and the wholesale reform of the law with regard
to children effected by the Children Act 1989.
8. In recent years, parties attending the
Family Courts to deal with Private Law disputes concerning children
would be expected to attend early, so as to have discussions with
a Family Court Welfare Officer (FCWO). The aim was to try to establish,
before the case was called on for Hearing, whether the matter
was capable of agreement, or otherwise to identify the cause of
the dispute between the parties, with a view to trying to reach
some amicable resolution. Sometimes the FCWO might help the parties
come to a tentative agreement (eg for the resumption of contact
to a child at a particular level of frequency), and the case would
then be adjourned for six or eight weeks, or longer, in order
to test out how well the agreement would work out in practice,
before the case came back to Court. A case might be adjourned
more than once in this way. It would very often be the case that
if the arrangements worked out well in practice, the parties would
come to an agreement that no Court Order was needed at all. On
the other hand if it became apparent that no agreement could be
reached, the case would be adjourned for the FCWO to prepare a
Welfare Report, recommending which Order, if any, the Court should
make.
9. Where the FCWO was required to prepare
a report, in my experience a period of about twelve or thirteen
weeks would have been typical for that work to be carried out.
During that period, the FCWO would have the opportunity of meeting
the adult parties (eg Mother and Father) on a number of occasions,
maybe sometimes with and maybe sometimes without the children
present; it may have been considered appropriate to observe one
or more contact sessions (if contact was in dispute); it may have
been appropriate for the FCWO to speak to any other adults who
could give helpful information (eg the Social Worker if the family
was known to Social Services, a teacher if the child's behaviour
or attendance at school was in issue etc). If, during the course
of this work, an agreement consistent with the welfare of the
child, could be brokered with the adults involved, the FCWO would
set out the basis of the agreement in the Report prepared for
the Court, and the Court might then be invited either to make
Orders in accordance with the agreement or to make no Order at
all because, in light of the agreement, an Order was no longer
needed. If no agreement was reached, the FCWO would write a report
setting out the results of his or her enquiries and would recommend,
in the conclusions to the Welfare Report, the Order which the
Court was being invited to make in the interest of the child's
welfare. The FCWO would usually be required to attend Court to
give evidence at the subsequent contested Hearing. It is my recent
experience that only a small%age of cases where the parties were
legally represented, went the whole way through to a contested
final Hearing. As a result of the assistance of the FCWO, a large
majority of cases were resolved amicably, whether or not an Order
was required in order to record the agreement reached.
10. In Public Law cases, prior to the setting
up of CAFCASS, in the Teesside area there was a local Panel of
Guardians ad Litem (as they were originally known) administered
centrally, but at arms-length from the Local Authority. Attached
to the local Panel, were a number of self-employed Guardians and,
at one stage, a small number of employed Guardians working for
the Children's Society (which was contracted to carry out a certain
amount of Guardian work—although I would estimate this arrangement
must have ended approximately seven years ago). When each new
case was instituted, the Panel Administrator would arrange for
one of the Guardians on the local Panel to take up the case. The
self-employed Guardians were all experienced Senior Childcare
Practitioners, with Social Work experience not necessarily gained
from working in this locality. Guardians would typically be members
of more than one Panel (for example undertaking work in the Teesside
area, as well as undertaking work in North Yorkshire or, for example,
the Leeds/Bradford area). As a Solicitor regularly receiving instructions
to act on behalf of Guardians in Care Proceedings, it was clear
to me that there was a relationship of respect between the Panel
Administrator and the Guardians on the Panel. Over the last ten
years or so (until the last two years, following the setting-up
of CAFCASS) I cannot recall there having been any serious backlog
of cases for the appointment of a Guardian. Instead a Guardian
would take up his or her appointment right at the outset of the
case, before the case came to Court for its first Hearing. The
Guardian would make initial enquiries to establish what the case
was about, and that Guardian would then arrange for a Solicitor
to act on his or her instructions, on behalf of the child/children.
11. The advantage in having a Guardian appointed
first, and then deciding which Solicitor should be instructed
to act on behalf of the child/children, was that the Guardian
would be able to take that decision on reasoned grounds. There
may, for example, be a case involving sexual abuse of a teenaged
girl, for which the Guardian might reasonably assume that one
of the female Solicitors on the Law Society's Children Panel,
might be appropriately instructed.
12. With regard to caseload, it is my understanding
that FCWO's were expected to handle a caseload of something in
the region of seventy to seventy five cases in a year. The self-employed
Guardians tended to have a caseload of about twelve or fifteen
at any one time. However Public Law cases tended to last longer
than Private Law cases (so the turnover of cases was slower).
If a Guardian happened to be allocated a few cases which all involved
a number of children, possibly with different problems and with
a complicated family or medical history, then in those circumstances
the number of cases the Guardian could be expected to handle would
be reduced. The Guardians referred to in paragraph ten above,
employed by the Children's Society, had a much smaller caseload
(maybe half of that carried by the self-employed Guardians).
SINCE THE
INTRODUCTION OF
CAFCASS
13. It was intended to include under the
one CAFCASS umbrella, both the FCWO service (operating in Private
Law cases) and the Panels of Guardians (operating in Public Law
cases). The introduction of CAFCASS seemed to result in a considerable
reduction in the relationship of trust and respect that previously
existed between the local Guardians and the Panel Administrator
(referred to in paragraph ten above). I am aware that this is
not a local peculiarity. I understand that, at least in one other
area, CAFCASS and/or the Lord Chancellor's Department were taken
to Judicial Review as a result of the dissatisfaction with the
way in which self-employed Guardians felt they were being treated,
and the terms and conditions they were being offered, when CAFCASS
was introduced. Although the vast bulk of Public Law Guardians'
work was being conducted (at least in my area) by self-employed
Guardians, it appeared there was a wish to move towards a Panel
which consisted of more employed (than self-employed) Guardians.
Dissatisfaction with the proposed terms and conditions, as well
as a feeling of being "dictated to", led to some Guardians
deciding no longer to work as Guardians. Some left. For whatever
reason, however, following the introduction of CAFCASS, a backlog
grew up in which Care Proceedings had been instituted by a Local
Authority, but no Guardian had been allocated to the case on behalf
of the child/children. Locally that backlog often extended to
several months.
14. As a result, when proceedings were issued
in my local Family Proceedings Court, a direction would be made
for the appointment of a Guardian but, because a backlog was known
to exist, the Court would also make a direction appointing a named
Solicitor to represent the child/children. That at least ensured
that there was some independent involvement (ie independent of
the Local Authority on the one hand and the parents on the other),
but of course the Solicitor would have very limited Social Work
expertise. The Solicitor would often have to conduct a case, sometimes
for several months, and sometimes through several Hearings, without
a Guardian having been allocated to the case.
15. The local practice was that, at perhaps
the initial directions Hearing, the various parties (the Local
Authority, the parents and the Solicitor representing the child/children)
would consider the nature of the concerns giving rise to the proceedings,
and the case would be categorised, A, B or C. Category A cases
were ones in which it was felt it was important to have a Guardian
at the earliest opportunity. This would, for example, include
cases where the Local Authority proposed to remove children from
home, or cases involving young babies, or cases in which there
were exceptional circumstances, which might otherwise make the
case particularly urgent. Category C cases might be considered
not particularly urgent, for example a discharge application (where
the children may have been the subject of Care Orders but an application
was made to discharge that Order as being no longer required).
Category B cases fell between the other two in degree of urgency.
Cases that were considered non-urgent category C cases might be
moved up the category list after three months. The categorisation
of cases would be kept under review because developments might
affect the urgency of a particular case.
16. My understanding is that CAFCASS, locally,
felt the Court and the parties were not particularly well suited
to deciding which case was urgent, and which case was not (presumably
on the basis that the Court staff and the Lawyers were not Social
Workers). In any event, in my area, this led to a considerable
backlog of cases in which Solicitors had been appointed to represent
children but in which no Guardian was allocated. A delay of several
months would not be unusual. In order to confirm that my experience
was typical I contacted my local Family Proceedings Court last
week, and it was confirmed to me that until a few weeks ago (ie
until February 2003) Guardians were still being allocated to cases
which had been issued in September/October 2002. To be fair, it
is my understanding that in the last two or three weeks, there
has been a burst of activity and a number of longstanding cases
have seen the recent appointment of a Guardian. However my local
Court confirmed to me that, as at mid-March 2003, Guardians were
being appointed in cases which were instituted in January of this
year. That is not a situation that existed prior to the setting-up
of CAFCASS.
17. There are obvious concerns for the safety
and welfare of children where proceedings continue for a lengthy
period without the children's Solicitor (and the Court) having
the benefit of independent advice and childcare expertise from
a Guardian. From cases currently on the desk in front of me, I
would give the following examples:
17.1 In Case One, an application was made
to the Court (in this case a County Court) on 20 September 2002,
by a mother seeking the discharge of a Care Order on her child.
The child had been returned to live with the mother for well over
two years. There were Hearings at Court in November, December
and in January, and in the last of those, the case was timetabled
towards an intended final Hearing even though a Guardian had not
been allocated. It was not until 24 February 2003 (ie five months—22
weeks) that we received confirmation a Guardian could be allocated.
The child's mother was distressed, indeed tearful, at least that
the abortive Hearing in January. As if that were not enough, it
subsequently became apparent that the Guardian to whom the case
had been allocated, who is a newly qualified Guardian and who
worked for the same Local Authority that holds the Care Order
for the child, actually worked in the same team of Social Workers
who dealt with the original Care Proceedings (although it does
not appear she had any direct involvement with the case). I hope
that situation can be resolved within the next few days, but you
will appreciate the prospect of more delays (if the case is to
be allocated to another Guardian) is difficult to contemplate.
(With reference to paragraph 15 above, the Committee may appreciate
this case was listed as a category C case. Other cases, for example
involving potential removal of children from home, would always
take priority).
17.2 In Case Two I was appointed by the
Family Proceedings Court to represent four children in Care Proceedings
(with the same mother but two different fathers). The Local Authority's
application was dated 15 October 2002, and when issued on the
following day, the Court directed that a Guardian should be appointed
but, obviously realising that would be unlikely to occur immediately,
the Court also named me as the Solicitor for the four children.
That was not, at first, a problem, because at the time the case
came to Court on 28 October 2002, it was not the plan of the Local
Authority to seek the immediate removal of the children from their
mother's care, but to adjourn the case to another Hearing at which
it was thought highly likely an Interim Supervision Order to the
Local Authority might be agreed. As a result, although I took
the view that all cases should really be regarded as urgent, clearly
one had to adopt a pragmatic approach and, in this case, since
immediate removal from home was not being proposed, it was suggested
to the Court that the matter might be listed as a category B case
for the appointment of a Guardian. Unfortunately by the time the
case came back to Court on 6 November 2002, the Local Authority
had changed its stance, arguing that the position at home had
deteriorated, and the Local Authority was seeking an Interim Care
Order. The father of the younger two children was joined in the
proceedings as a party on 6 November 2002 and the case was adjourned
to a further Hearing on 13 November 2002, when all day was set
aside for a potentially contested Interim Care Order application.
The father of the older two children was joined in the proceedings
as a party on 13 November 2002 and, for a number of reasons, including
my objection to the case proceeding to a contested Hearing on
the issue of an Interim Care Order without a Guardian being in
position, the Magistrates adjourned the case to a further Hearing
on 21 November 2002. Whilst the Lawyers were in Court, the Justices'
Legal Advisor telephoned CAFCASS to ask when a Guardian would
be available, because the matter was very urgent. It was indicated
that a Guardian (who was not identified over the telephone) would
be available to deal with a contested Interim Care Order Hearing
on 21 November 2002. Because it was known that a new Guardian
had been appointed to the Panel recently, who had previously been
a Social Worker with the same Local Authority, that new Guardian
was identified during the course of the telephone conversation
with CAFCASS, to ensure that she was not the Guardian to whom
it was hoped to allocate the case. Despite this, it is understood
CAFCASS had hoped to allocate the case to the same, identified,
Guardian. On 19 November 2002 CAFCASS confirmed they had no Guardian
available, to whom the case could be allocated. That information
was confirmed by CAFCASS on the morning of the Hearing on 21 November
2002. At that stage all of the parties agreed it was a serious
step to seek an Order to remove the children in a case where there
was no Guardian, particularly in a "chronic neglect"
case. The Justices directed that the case be transferred up the
County Court for Hearing. The matter was listed as a matter of
urgency before a Circuit Judge sitting in the County Court on
25 November 2002, at which stage there was still no Guardian.
The Judge directed the case should come back before her on the
following day (26) and the day after that (27) before a Hearing
on 28 November 2002, when the Court made Interim Care Orders to
the Local Authority but on the basis the children would remain
at home from Monday to Friday and be in respite care at weekends,
with Undertakings to co-operate being given by the parents. The
Guardian who was identified after the Hearing on 25 November,
was able to attend Court for the Hearing on 26, but obviously
had no opportunity to investigate prior to the Hearing on 26,
and obviously had very limited opportunity to investigate the
matter before the Hearings on the next two days. The children
were subsequently removed to foster care. It will be seen that
there were five Hearings (including dates fixed for intended contested
Hearings) before a Guardian was identified.
18. It is my understanding that, prior to
the introduction of CAFCASS, Senior Childcare Practitioners/Social
Workers were considered suitably qualified to act as Children's
Guardians only after at least five years post qualification experience.
I believe this has now been reduced to three years.
RECOMMENDATIONS
19. The welfare of children involved in
Family Court Proceedings cannot be "represented, safeguarded
and promoted" whilst there remains a shortage of Guardians,
and therefore a backlog of Public Law cases awaiting allocation
to a Guardian. There is a need for more Guardians.
20. It might be suggested that one way of
immediately increasing the number of people available to work
as Guardians, would be to reduce the post qualification experience
required. I would argue against this. The role of a Guardian in
Care Proceedings is to act as the Court's independent expert appointed
to investigate the case from the point of view of the child, by
seeing all of the parties involved, examining the Local Authority's
files and considering the information that can be given by any
other professionals involved in the matter (for example health
professionals, school etc) and, having considered the evidence
and the Welfare Checklist of factors set out in Section 1(3) Children
Act 1989, to recommend to the Court which Order, if any, should
be made. The role is not the same as that of the former FCWO,
but may involve, for example, challenging and opposing the views
and recommendations of Local Authority Social Workers in bringing
the proceedings, or in opposing all of the parties in a case (for
example in an agreed application to discharge a Care Order) if
the Guardian feels that the Orders sought would not be in the
interests of the child's welfare. Judges do not always follow
recommendations made by a Guardian. However the views and recommendations
of a Guardian are likely to inform the Court and are clearly very
influential not only before Magistrates but also before Circuit
Judges in the County Court. There would be little purpose in appointing
a Guardian as an independent expert to investigate the case from
the point of view of the child's welfare, if, in the majority
of cases, the Court were not to follow the Guardian's recommendation.
Guardians need to have the respect and confidence of Magistrates
and Judges. This is unlikely to be achieved by reducing the experience
required of potential Guardians.
21. In order to make the roles of the former
FCWOs and former Guardians, more attractive (so there would not
be a shortage of people willing to work for CAFCASS) I would argue
that the conditions of service need to be improved. The Committee
may need to look at whether rates of pay to those working for
CAFCASS are uniform throughout the Country, or whether there are
pay differentials. It should never have been necessary for people
previously working as Guardians to have to take CAFCASS and/or
the Lord Chancellor's Department to Judicial Review because of
pay and conditions offered. Professional people carrying out responsible
roles (either in Private or in Public Law proceedings) should
be treated with respect or they will otherwise vote with their
feet and look for other areas of work. Whilst it may seem attractive
on a balance sheet, efficiency and effectiveness of the service
offered is not likely to be improved by failing properly to acknowledge
the expertise of staff (which should be reflected in adequate
remuneration).
22. The shortage of Guardians currently
existing in my area puts the welfare of children involved in proceedings
at risk, undermines the service offered to the Courts, and demonstrates
that CAFCASS is not being run effectively or efficiently. Removal
of the backlog I have referred to above is essential if there
are to be improvements in the service offered by CAFCASS.
23. I understand there may be a wish to
"harmonise" the roles formerly occupied by FCWOs in
Private Law proceedings and Guardians in Public Law proceedings.
I accept there may be some professionals who are suited to operate
in both roles. Obviously any experienced Guardian should be perfectly
well aware of the Private Law Orders available in a case as alternatives
to Public Law Orders (eg firstly it might be considered that a
Residence Order in respect of a child in favour of an extended
family member might be a better alternative than a Care Order,
which might result in long-term fostering or adoption; secondly
Guardians regularly have to consider contact issues wherever a
child is placed). However there are many ways in which, in general
terms, the role of a former FCWO in Private Law proceedings and
the role of a Guardian in Public Law proceedings are distinct
from each other.
23.1 In the majority of Private Law cases
(eg a dispute as to the principle or the amount of contact to
a child that might be exercised by his father, or whether a child
should live with person A as opposed to person B) a mediatory
and conciliatory role is adopted by the former FCWO. That is not
a surprise. The Solicitor's Family Law Association requires its
members to conduct cases in a conciliatory manner, rather than
an aggressive, confrontational manner. Parties seeking Public
Funding must first be willing to attend mediation with a view
to resolving such disputes, before being able to apply for Public
Funding to seek a Residence Order, a Contact Order etc. The approach
of the former FCWOs is largely successful and results in only
a minority of cases remaining contested throughout. They are often
successful in getting parents to consider the welfare of the children
rather than their own particular wishes and motives.
23.2 The role of a Guardian in Public Law
proceedings is different; it is more of an investigative role,
often challenging Local Authority evidence, conclusions and recommendations,
and of course it may involve similar challenge to other parties
involved in the proceedings. Public Law cases often (but not always)
involve more complex backgrounds, more serious allegations of
bad conduct or abuse in relation to the children, and more serious
consequences for the child and the other parties should the allegations
be proved (a child being removed from parents, possibly subsequently
to be adopted as opposed simply to deciding whether a child should
have contact with his parent once a week or twice a week). The
urgency, complexity and sheer volume of work that may have to
be undertaken in Public Law cases, is reflected in the fact that
a Guardian dealing with Public Law cases might carry a fifth or
a sixth of the caseload carried by his Private Law CAFCASS colleague.
23.3 In the circumstances outlined above,
I can see merit in maintaining a separation between those in CAFCASS
who carry out the functions of a Guardian and those in CAFCASS
who carry out the function of a former FCWO.
24. To develop the skills of staff in CAFCASS,
there will be a need not only to have training in the form of
seminars and workshops (available not only to employed but also
to self-employed workers) but also a level of mentoring or training
given to new recruits by experienced CAFCASS workers. Those workers
for CAFCASS who are self-employed will need to be remunerated
at an appropriate level to make it worth their while ensuring
that proper training is given to newly taken-on staff.
25. Until two years ago a Guardian ad Litem
was appointed in Care (Public Law) Proceedings. The same person
is now known as a Children's Guardian, which poses no problems.
However in Private Law proceedings the person who was previously
a Family Court Welfare Officer (Welfare Officer) has a very different
title. The worker for the Children and Family Court Advisory and
Support Service (CAFCASS) is a Family Court Advisor (when attending
Court to advise and assist and hopefully to get the parties to
reach an amicable settlement) and becomes a Family Court Reporter
(in writing a report setting out his or her recommendations).
Why can't that person continue to be known as a Court Welfare
Officer or simply a Welfare Officer, even if he is employed by
CAFCASS? The term was previously understood by parents and other
parties involved in Private Law proceedings and it served to draw
everyone's attention to the fact that, in such proceedings "the
welfare of the child shall be the Court's paramount consideration".
Raymond Adrian Porter
17 March 2003
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