Written evidence submitted by NCH (CAF
56)
CHILDREN AND FAMILY COURT'S ADVISORY AND SUPPORT
SERVICE (CAFCASS)
INTRODUCTION: ABOUT
NCH AND CAFCASS
1. NCH is a leading children's charity that
operates more than 500 projects across the UK for children at
risk and in need, young people, and families. NCH works with more
than 50,000 people every year, including hundreds who are subject
to family proceedings. We help them through our child-focused
family mediation services, our extensive contact centre provision,
our national network of family support services and our participation
in local Sure Start and Children's Fund programmes. NCH is the
largest voluntary sector provider in the UK of most of these services.
Drawing on this extensive practice base, NCH works closely with
a number of Government departments on the development of policy
in this area, including the Lord Chancellor's Department (LCD),
the Home Office and the Children and Young People's Unit.
2. NCH's mission is to "improve the
quality of life of the most vulnerable children". Our submission
to the Committee's Inquiry is based firmly on our experience of
how well CAFCASS is working on the ground in promoting the welfare
of children and families, and on our views of what might help
to improve the current position. Because of the potential impact
of CAFCASS funding decision on our services we also set out our
views of the strategic operation of CAFCASS.
3. CAFCASS was established on 1 April 2001.
NCH strongly supported its development, having long advocated
for an integrated Family Court service. NCH was represented on
various advisory groups convened by the LCD during the developmental
period prior to the passing of the Criminal Justice and Courts
Services Act 2000.
4. CAFCASS's primary duties are set out
in the Criminal Justice and Courts Service Act 2000. In respect
of family proceedings in which the welfare of children is or may
be in question they are to:
— Safeguard and promote the welfare
of the children.
— Give advice to any Court about any
application made to it in such proceedings.
— Make provision for the children to
be represented in such proceedings.
— Provide information, advice and other
support for the children and their families.
By providing :
— Reports in private law proceedings.
— Children's Guardian reports in public
law specified proceedings.
— Reports in adoption proceedings.
— Attendance at non-privileged directions
appointments.
NCH'S CONCERNS
PRIOR TO
1 APRIL 2001
5. CAFCASS's primary function is to serve
the Court by the provision of reports. The requirement that it
should provide "support" created an expectation that
was unlikely to be achievable in the complex process of family
re-ordering. CAFCASS is a service provided to the Court, not to
children. The tension between the judicial administration of the
family law and the social and welfare context in which it operates,
was not addressed. Research evidence does not appear to have informed
the development of CAFCASS's strategy.
6. Attention during the brief development
period focused on the challenge of bringing together three very
different groups each with established work practices, management
systems and perceptions. Financial issues provoked by separating
Family Court work from Probation and employment issues relating
to Guardians dominated the development agenda, and were not resolved
prior to 1 April 2001.
7. As a result, the transfer of Family Mediation
and Children's Support Service monies that funded NCH's mediation
projects and which had previously been provided by local Probation
Committees, to the new organisation, was only achieved as a result
of considerable energy expended by NCH and by National Family
Mediation staff and the successful lobbying of various Departmental
Ministers.
8. In our view, CAFCASS's development also
failed to recognise the primary objective of diverting private
law matters away from the Court. Some important factors were not
taken sufficiently into account, including the negative outcomes
for children of on-going and unresolved parental conflict.
9. Throughout the development process the
impression was created—and has unfortunately since endured—that
the creation of CAFCASS was not founded primarily upon the safeguarding
or promotion of children's welfare, but rather on a desire to
reduce or at least contain public expenditure in the Family Justice
system. Above all, there was a failure to recognise that family
transition is a process, not an event, which can only be managed
by the provision of a range of interventions, most of which need
to be offered outside the Court arena. No strategy for such provision
was integrated into the development plan for CAFCASS.
NCH's concerns post 1 April 2001
10. NCH acknowledges that senior management
issues during the first year of CAFCASS's operation impeded the
development of strategy in relation to the provision of services
to support, inform and assist families in breakdown, including
family mediation. The continuation of such services, provided
in the main in the voluntary sector, was only secured by continued
representation to the Minister and LCD Officials, in the absence
of CAFCASS management attention to the issue.
11. Standards for CAFCASS service delivery
were developed in 2000. The CAFCASS standards consultation in
2002 made no reference to the first standards that had been consulted
upon and reflected a lack of awareness of the core requirements
for service delivery. To date and notwithstanding the repeated
consultation processes, no CAFCASS standards have actually been
published. The absence of service standards precludes effective
audit of CAFCASS activity and, importantly, children and families
are not informed about what they can expect or indeed require
of CAFCASS.
12. A CAFCASS Complaints and Comments Procedure
has been consulted on. In our response we highlighted the need
for children and families to be able to access an open and time
limited process. To date no complaints system seems to have been
established. CAFCASS's proposals in this regard do not seem to
include consideration of consumer/user research.
13. Prior to 2002 CAFCASS had not made effective
links with the Legal Services Commission or lead providers of
services in the field. This led to policy and strategy development
within CAFCASS that has not effectively taken into account external
factors and developments.
14. The range of services required to safeguard
and promote child welfare and non
conflicted parenting have been extensively identified
in research. Making Contact Work (LCD Family Law Act Advisory
Board Report) for example, highlights the need to provide a range
of services. While such provision is expected of CAFCASS, in our
view the knowledge, skills and professional practice experience
required to deliver such interventions are to be found in the
main outside of CAFCASS.
15. In NCH's view, effective intervention that:
(a) Promotes child welfare.
(b) Improves the service offered to family
courts.
(c) Improves the efficiency and effectiveness
of the services through achieving value for money.
(d) Improves the services offered to
families and other key stakeholders.
(e) Plays a full role in delivering the
wider Government agenda of improvements to public services is
at present threatened by CAFCASS policy with respect to partnerships
with external providers.
16. In November 2002 CAFCASS indicated its
intention to cut its partnership funding to Family Mediation Services.
The proposal appeared to have three main drivers:
(a) The Legal Services Commission funds
Family Mediation.
(b) CAFCASS staff can provide this intervention.
(c) CAFCASS funds would be better applied
to the provision of child contact services.
In March 2003 CAFCASS announced that it intended
to cut funding for Family Mediation Services by 40%.
17. NCH understands CAFCASS funding constraints
but, in our view, this decision will be profoundly damaging to
the welfare of children and families and will not deliver long-term
value for money. Our firm belief, based on professional experience,
is that conflict resolution is central to effective parenting
post divorce or separation. The Legal Services Commission funds
mediation for those eligible for public funding. The Commission
requires providers to ensure equal funding for non-assisted persons.
The reality is that most parents who are supporting two households
can do little more than make a contribution to the costs. The
impact of the CAFCASS cut will be to drive parents willing to
mediate to the Court. We are deeply concerned that the outcome
will be increased:
(a) costs to the family justice system;
(b) parental conflict; and
(c) likelihood of negative outcomes for
children.
18. CAFCASS staff are unable at present
to deliver reports in a timely manner. It is questionable whether
they are able to devote time to the proper practice of family
mediation as distinct to in-court conciliation. Few CAFCASS staff
are trained in accordance with the requirements of the UK College
of Family Mediators or can meet the professional practice supervision
and continuing education standards. Similarly CAFCASS at present
would not be able to meet the standards required of service providers
by the Legal Services Commission. NCH believes that families in
the Court system should receive the same level of professional
practice and service as that provided by publicly funded providers,
and that mediation must be available at all stages in the family
transition process.
19. Unfortunately we are firmly of the view
that CAFCASS's decision to divert the funding previously invested
in family mediation towards child contact services will achieve
little more than to increase the availability of venues in which
conflict is contained, rather than actively addressed. In the
absence of the availability of a range of interventions tailored
to the needs of each family the potential for diversion and damage
limitation is at grave risk of being lost.
20. We do not believe that CAFCASS has understood
the probable consequences of funding withdrawal, though we have
taken repeated steps to explain them, since much of NCH's contact
centre and family breakdown support provision is linked to our
family mediation work and is not financially sustainable on its
own. We have used our family mediation services as bases from
which to "spin off" a range of well-regarded and well-used
support services for parents and children. CAFCASS's funding decision
is therefore not going to produce the outcomes they desire and,
indeed, threatens to place at risk a wider range of useful services,
that further a number of different Government policy objectives.
21. In Wales, where there is significant
social exclusion, particularly in rural areas, the availability
of mediation developed initially as a service to the court and
extended to meet the Legal Services Commission's geographic requirements
is in serious jeopardy, as a direct result of CAFCASS decision
making.
ISSUES THAT
IMPACT DIRECTLY
ON CHILDREN
22. NCH is concerned that CAFCASS staff
in Private Law often appear to lack the training and skills necessary
to determine the needs and wishes of children who are the subject
of Court proceedings. Research reflects children's frequent dissatisfaction
and their feelings of being unheard or misrepresented. Unfortunately,
not enough time is available to enable effective engagement with
children and this often results in them needing support services
to help them overcome the damaging consequences of being unheard
in the adult decision making process. In general, this practice
does not accord with Article 12 of the UN Convention on the Rights
of the Child.
23. Additional NCH concerns are that:
— Information and support services
for children and young people, and child inclusive practice, are
not central to the CAFCASS practitioner role.
— The shortage of Guardians challenges
effective planning and representation of children in Public Law,
and puts children at risk of further harm.
— The corporate priorities of CAFCASS
appear to take precedence over its role in providing representation
and advocacy for vulnerable children. We are concerned that the
human rights of children are effectively being rationed by CAFCASS,
rather than promoted.
— CAFCASS has failed to develop a strategic
view of the key services required to support children and their
families at all stages of the separation process, informed by
research, and of what services must be provided to address the
damage to children caused by conflict and litigation. CAFCASS
does not appear to have formed a realistic view as to what it
can effectively provide itself and what should be provided via
partnership and commissioning. CAFCASS has not so far developed
policy in this area. Such policy should be driven by need and
"best fit" and not by the availability of spare money.
— NCH believes that Family Mediation
and linked Services should be integral to the Family Court process
in England and Wales, as they are in many other jurisdictions
at all key stages, because this is in the best interests of children
and families and will provide the best long-term value for money.
24. In conclusion, we regret that the picture
we paint of CAFCASS in this submission is a largely negative one.
As an organisation NCH remains highly supportive of the idea of
an integrated Family Court Service but, unfortunately, a variety
of issues seem to be preventing the potential benefits from coming
through.
25. If the current situation is to be improved
CAFCASS will, among other things, need increased resources, a
firmer strategic steer, a stronger commitment to partnership working,
and a coherent plan for building its capacity and professional
skill base, so that children and families can receive the services
NCH believes they so badly need and deserve.
Vicky Leach
Advisor on Family Mediation and Family Support, on
behalf of NCH
March 2003
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