Written evidence submitted by the Family
Law Bar Association (CAF 47)
INTRODUCTION
1. The Family Law Bar Association has a
membership of some 1,500 practising barristers who specialise
in the field of family law [approximately 15% of the total self
employed Bar].
2. The FLBA welcomes the establishment of
an inquiry into CAFCASS by the Select Committee on the Lord Chancellor's
Department. Inevitably the content of some of our observations
will be negative with regard to the present level of resources
and service provided by CAFCASS, however our overall aim is to
be positive and supportive of CAFCASS. We consider that the role
of CAFCASS in the family justice system is of the utmost importance
and we hope that the outcome of the Select Committee's inquiry
will be to improve the service's ability to fulfil that role,
rather than further reduce morale.
AN OVERVIEW
3. Members of the Committee will know of
the history of the establishment of CAFCASS from their own knowledge
and from the submissions of others. The system for representing
children in public law care proceedings which preceded CAFCASS
worked reasonably well, and had the benefit of the services of
professional guardians ad litem ["guardians] throughout England
and Wales. Many of these had substantial experience of social
work and court proceedings. The importance of the contribution
of the independent role of a guardian in care proceedings should
not be underestimated. The pre CAFCASS service had sufficient
guardians on local panels to provide a prompt and adequate service
throughout the jurisdiction.
4. As a result of the long running dispute
with self employed guardians over payment and conditions of service,
many of the corps of pre CAFCASS guardians left the work and their
services are no longer available to the courts in that role. The
result is striking and unacceptable delays in appointing guardians
in care cases in all areas of the jurisdiction.
5. The officers who are appointed to act
as Child and Family Reporters in private law proceedings are largely
drawn from those formally employed by local probation services
to act as Family Court Welfare Officers. Again, following the
establishment of CAFCASS, the availability of these officers has
substantially reduced with the result that substantial delays
are being experienced as the new norm.
6. CAFCASS Legal Services and Case Work
section has taken on much of the role previously undertaken by
the Official Solicitor. Again, a number of the seasoned caseworkers
have left this work, with the result that CAFCASS Legal is no
longer able to assist the courts to the extent and degree that
was the case prior to the reorganisation. We would, however, wish
to pay public tribute to Charles Prest and Michael Hinchliffe
(Head and Deputy Head of CAFCASS Legal Services). Both are individuals
with a wealth of experience and professional skill, who are committed
to working to improve the service from within—CAFCASS is
fortunate to have (and to have kept) leaders of this calibre.
THE SITUATION
ON THE
GROUND
7. We are keen not to repeat detail which
we anticipate will be before the Committee from other consultees
who are more able to provide detailed figures and statistics.
The general response from all those who have contacted the FLBA
from various parts of the jurisdiction is the same: the service
for the provision of both guardians and Child and Family Reporters
[CFR] is grossly understaffed with the result that there are unacceptable
delays in appointing officers to undertake this work and consequent
delays in the work being performed in a timescale that is appropriate
for the child's welfare needs.
8. The following are a few examples of the
anecdotal responses that we have received:
— in a Birmingham case, a request was
made to CAFCASS Legal to appoint a guardian in October 2002. CAFCASS
Legal declined to become involved, but, by March 2003, no other
guardian has been appointed from the service;
— pressure of resources (and, we understand,
no budget for Family Assistance Order work) has effectively removed
the use of FAO's from the range of orders available to the court;
— widespread delays in appointing a
guardian are reported in all parts of the jurisdiction;
— a number of our members have expressed
concern at the very restrictive criteria that seem to be adopted
by CAFCASS Legal in deciding which cases they will accept. We
believe that a number of the former OS caseworkers have declined
to continue to work for CAFCASS at the end of the trial handover
period. The loss of their experience and manpower is to be regretted.
The courts are beginning to fill the gap by considering appointing
representatives for children from agencies such as NYAS or by
using local solicitors. Insofar as this dissipates the core of
experience in this type of work away from one central skilled
agency (CAFCASS Legal) this is a retrogressive development;
— in one case CAFCASS Legal were invited
to represent a two-year-old child. The child's parents had each
been killed in separate road traffic accidents. There was a "custody
battle between the maternal and paternal families. We are told
that CAFCASS Legal stated that they were unable to act for the
child, but expressed the opinion that this was exactly the type
of case that would have received representation from the Official
Solicitor before the reorganisation. In the end a CFR from the
local office was, for the first time in her career, appointed
to act as a children's guardian;
— the above example illustrates a common
theme of CAFCASS Legal declining to become involved because of
lack of resources with the result that the task of representing
the child's interests falls to a CFR who is likely to have limited
experience of such work; and
— in one case in the Epsom County Court,
the judge directed the appointment of a CFR on 5 September 2002.
No officer was appointed until February 2003 and the earliest
date by which a report could be filed was 1 April 2003 [nearly
seven months after it was requested].
SPECIFIC OBSERVATIONS
Delay in appointing child and family reporters
9. We have received reports from a number
of areas which state that the delay in appointing CFR's is such
that the judges are declining to order welfare reports, believing
that the delay in dealing with the issues in the case will be
detrimental to the child. This practice leaves the judges to decide
the issues in the case without any independent assessment of the
child's welfare. Such a practice, in particular, denies the child
and the court any opportunity of knowing of the child's wishes
and feelings on the issue. It is an essential element of our domestic
law [Children Act 1989, s 1] and Strasbourg law [see Sahin, Sommerfield
and Hoffmann v Germany [2002] 1 FLR 119] that the court should
know a child's wishes and feelings.
Delays in appointing childrens' guardians
10. The delays in appointing a guardian
in new care proceedings are of extreme concern. Reports of the
deaths of two children after care proceedings had commenced, but
before a guardian had been appointed are of extreme concern, but
in every public law case it is imperative that a child's interests
are effectively represented from the start. The need for effective
investigation and an independent contribution to the planning
for a child is all important in the early days and weeks of a
care case. The absence of any guardian at this stage may be particularly
damaging (not to say dangerous) to a child's interests. In addition,
the guardian is often at the centre of the process of locating
and appointing experts to investigate the issues in a case; if
the guardian's appointment is delayed, then the whole process
of investigation and eventually determining the case is in turn
put back. It also inevitably means that more directions hearings
are required than would be the case if the guardian was on board
at the start.
11. It goes without saying that the costs
in emotional and financial terms of delaying children cases are
likely to far outweigh any savings that may have been achieved
by restructuring the pay and working conditions of the self employed
guardians.
PLAN TO
TRAIN ALL
CAFCASS OFFICERS TO
ACT AS
CHILDREN'S
GUARDIANS
12. We are particularly concerned by reports
that CAFCASS is intending to train all of its officers to be generic
workers, able to be appointed as CFR's or guardians in any case.
At the time of the establishment of CAFCASS we expressed concern
that there would be a watering down of necessarily high standards
of practice demonstrated by guardians ad litem in care proceedings.
The professional background and training of those officers who
were previously attached to the family court welfare branch of
the probation service is markedly different to that of the corps
of officers who have hitherto been appointed as guardians. Many
CFR's will never have had any experience in working within social
services or in dealing with public law cases. Our concern is that
the retrogressive step of establishing a "one size fits all"
workforce will in reality further reduce the standards of officers
appointed to be children's guardians to the lowest common denominator.
As a proposal it has all the appearance of a plan being brought
in to address the lack of resources in the agency, rather than
a plan that is being driven to meet the best needs of the children
and families who are before the court in care proceedings.
13. Already, the lowering of the post-qualification
experience required to be a guardian has led to guardians being
far less experienced than previously and sometimes less experienced
than the local authority social workers. This has distorted the
balance of power within care proceedings away from the child and
in time will undermine the judge's ability to rely on the experience
of a guardian. This may also in time erode the importance of the
guardian's role resulting in moves to limit their appointment
in public law cases.
THE NEED
TO HAVE
MORE PEOPLE
AT THE
TOP OF
CAFCASS WHO HAVE
EXPERIENCE OF
CHILD PROTECTION
WORK AND
THE FAMILY
JUSTICE SYSTEM
14. We support the submissions made by others,
principally the former Official Solicitor, Peter Harris, to the
effect that CAFCASS management and Board are peopled by those
who have a background outside the field of child care work and
child representation. There is a clear need for there to be a
balance of skills within the senior levels of the organisation;
the present total imbalance leads to decisions which seem to be
driven by the needs of the organisation without any informed regard
to the needs of children and families who find themselves before
in court proceedings.
NEED FOR
A NATIONAL
SYSTEM OF
PRIORITISING CASE
ALLOCATION
15. The apparent lack of a uniform national
system for prioritising cases means that practitioners and the
courts do not know how long cases will take to get allocated.
In London, for example, priority is given to babies but this is
not nationwide. There should be a system which, upon proceedings
being issued, gives an accurate estimate of the delay depending
on the type of case.
CONCLUSIONS
16. Many of the problems that we have highlighted
have arisen from a lack of resources being made available to the
service, and, at the time that the service was established, the
regrettable and destructive manner in which human resource issues
were managed. We are where we are and the milk (not to say the
cream) what was present in the old system has been spilt. The
way forward must involve a substantially greater allocation of
resources to CAFCASS in order to allow:
— the employment of additional officers
who have the requisite experience and qualifications to act effectively
as children's guardian;
— the employment of additional officers
to act as child and family reporters; and
— the employment of additional officers
to work in CAFCASS Legal Services and Case Work Division.
17. The Board and senior management of CAFCASS
must be balanced by the introduction of a number of individuals
who have experience in work that CAFCASS is established to undertake.
18. In short, CAFCASS should be given the
resources necessary to encourage and enable it to move on to establish
itself as a respected and effective agency for the representation
and support of children and families who are involved in the family
justice system. Each of the pre-CAFCASS agencies covering this
work was properly respected and effective in their respective
fields. As a result of the appallingly managed start that it was
given and the resulting lack of resources, at present, regrettably,
CAFCASS is unable to move forward to achieve even an adequate
level of service.
19. The FLBA is keen to assist the Select
Committee's Inquiry in any appropriate manner. We are also keen
to do anything that we can to improve the situation within CAFCASS
and to support the many individuals within the service who, against
the odds, are striving to achieve and deliver good practice. CAFCASS
is clearly here to stay. The task now is how best to assist it
to achieve the necessary level of service for children and families.
Andrew McFarlane QC
Chairman Family Law Bar Association
March 2003
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