Appendices
Appendix 1
Copy of a letter from Rt Hon The Lord Falconer
of Thoroton, Secretary of State for Constitutional Affairs and
Lord Chancellor to Ms Judy Weleminsky
Thank you for your letter of 3rd December
2003. I know that you have since had a meeting with David Normington,
Permanent Secretary at the Department for Education and Skills.
I understand that he asked you to reconsider my request that you
should tender your resignation as a member of CAFCASS. I am sorry
that you remain unwilling to do so. I remain of the view that
a fresh start is in the best interests of CAFCASS and the children
and families it serves.
As David explained, my original request was based
on Professor Sir Clive Booth's advice. At our request, he had
conducted a fundamental review of the Board's membership. It was
a "central recommendation" of the Select Committee that
this should be undertaken. Sir Clive advised that there should
be a fresh start with the Board, and that all members of the Board
should be invited to submit their resignations. You will be aware
that I have now accepted resignations from 9 of your colleagues.
Given your unwillingness to resign, I have carefully
considered the position and am minded to terminate your membership
pursuant to Regulation 4(3)(b) of the CAFCASS (Membership, Committee
and Procedure) Regulations 2000.
On 24th September 2003, the outgoing Chair,
Anthony Hewson, made a recommendation to me that your membership
should be terminated. He handed me a dossier detailing instances
of alleged breach of your duties as a Board member with supporting
documentary evidence. I asked a senior member of my Department
with no previous involvement with CAFCASS to review this dossier.
On 9 October 2003, he reported to me with his analysis of the
dossier (below). I was giving careful consideration to these findings
but decided to postpone further consideration of what action I
should take because of the wider issues affecting the CAFCASS
Board at that time. Mr Hewson ceased to be Chairman on 10 October,
having tendered his resignation. On 16 October, I asked Sir Clive
to conduct a review of the membership of the Board, as recommended
by the Select Committee. As you now know, I then accepted Sir
Clive's advice that all Board members should be invited to tender
their resignations. While these events were unfolding, I did not
consider it sensible simultaneously to pursue the separate matter
of your personal conduct as a member. Given your unwillingness
to resign in company with your colleagues of the old Board, I
have now had to review the situation.
I am satisfied that there is evidence that you have:
i. failed to behave in a corporate manner;
ii. behaved inappropriately in relation to the
Chief Executive and staff of CAFCASS;
iii. refused to observe confidentiality.
If established, the case could justify termination
of your membership of the Board. Before making any final decision
I would welcome your comments on this matter.
In the meantime, I am suspending your membership
of the Board with immediate effect. During your suspension you
will not receive any Board papers and will not be entitled to
attend any Board meetings. You must not enter CAFCASS premises.
During the period of your suspension, you will receive payment
equivalent to the fee that you would receive for 3.5 days' work
per month. I invite you to provide me with your comments in writing
on the above matters by close of play on 16 January 2004.
Once I have had the opportunity to consider your
written comments, I will consider whether (a) to terminate your
membership; or (b) to lift the suspension of your membership.
I would ask you to indicate in writing by 5.00pm
on 12 December that you consent to the terms of your suspension.
You should be aware that if you do not consent to the terms of
your suspension, I will have no alternative but to terminate your
membership of the Board with immediate effect.
If, of course, you prefer not to engage with the
process outlined above, I remain willing to accept your resignation.
11 December 2003
Paper by Mr David Crawley, Head of Office, Scotland
Office, Department of Constitutional Affairs
CAFCASS: Performance of Board member, Ms Judy
Weleminsky: review of documentary evidence
INTRODUCTION
1. I was invited by the Permanent Secretary at
the Department for Constitutional Affairs to conduct a review
of the evidence relating to allegations of breach of duty on the
part of a member of the Children and Family Court Advisory and
Support Service (CAFCASS) Ms Judy Weleminsky. In view of the timescale
in which this work has had to be done my review has been confined
to the documentary evidence made available to me. This paper reports
my findings on this basis.
2. I should note that, as Head of the Scotland
Office, I have had no prior engagement with the subject and have
no personal knowledge of CAFCASS, its Executive Team, staff or
any of its Board.
BACKGROUND
APPOINTMENT AND RESPONSIBILITIES OF BOARD MEMBERS
3. CAFCASS was established by the Criminal Justice
and Court Services Act 2000 to support and advise children and
their families in respect of family proceedings where children's
welfare may be in question. Regulations under Schedule 2 of the
Act provide for the appointment, resignation or removal from office
of members. Under the regulations the Lord Chancellor has the
power to terminate the office of a member inter alia if the member
is unable or unfit to carry out his/her functions as a member.
The CAFCASS framework document sets out the responsibilities of
members. These responsibilities have since been clarified and
extended in the CAFCASS Board Performance and Conduct Procedure
Note finalised in July 2003.
ALLEGATIONS
4. The allegations to be considered have been
submitted to the Department for Constitutional Affairs in a report,
supported by documentary evidence, by the Chairman of the Board.
In summary there are three general areas of criticism and six
specific ones.
5. The three general areas are:
i. Inability of Ms Weleminsky to act in a corporate
manner;
ii. Oppressive/difficult behaviour in relation
to the Chief Executive and staff of CAFCASS;
iii. Refusal to observe confidentiality.
6. The six specific areas are:
i. that Ms Weleminsky presented separate evidence
to the Select Committee inquiring into CAFCASS, in a manner which
undermined the organisation and without consultation with the
Chairman or other Board members;
ii. that she provided sensitive information which
she possessed as a member of the Board of CAFCASS to the Daily
Telegraph in a way which undermined the CAFCASS position;
iii. that she gave an interview on File on 4
on 8 July without any prior clearance or discussion;
iv. that she contributed to various articles
in 'Community Care' without prior 'consultation or discussion;
v. that, during the course of 2002, she had contact
with the then suspended Chief Executive while disciplinary proceedings
were in progress, the terms of which criticised the Chairman;
vi. that she has continuously refused to implement
a decision of the Board on the closure of the SMART Group.
ANALYSIS OF ALLEGATIONS
INABILITY TO ACT CORPORATELY
7. It is suggested that Ms Weleminsky has, over
a long period of time, demonstrated that she is unable and/or
unwilling to act with proper regard to her responsibilities as
a Corporate Board member. There is a good deal of documentary
evidence of other members concerns supporting this view [e.g.
Anthony Hewson's comments of 7 June 2003, various Board members
comments at a private meeting on 17 June 2003, Angela Killick's
of 30 October 2001]. Comments from Board members include a statement
that Ms Weleminsky's approach has distorted priorities and destroyed
trust and co-operation within the Board and between the Board
and the Executive and the Board and Whitehall. Ms Weleminsky has
herself stated in an e-mail of 24 September 2003 to a Board member
that "I needed to continue to take an external route to influence
since the internal one clearly wasn't working." She also
said that "If I see real evidence of a chance of approach
by the Board and ET then I will work with you and not around you.
However until I do, I feel that for the sake of the service we
are supposed [to] provide, I must keep up my efforts."
8. Over the life of CAFCASS there have been a
number of meetings at which Ms Weleminsky's attention has been
drawn to the issue of corporate responsibility. A notable example
was 11 April 2002 at which the Chairman noted that "corporate
responsibility was about ownership of Board decisions ……….
Once decisions are taken the debate should not be reopened. To
do so undermined the Executive who alone could implement the non-Executive
Board decisions". In response Ms Weleminsky "thought
it important to reserve the right to change wrong decisions".
9. The documents referred to in paragraphs 7
and 8, and the other evidence available, clearly suggest that
several other members of the Board have been concerned about her
approach and that she herself sees her role in an individual rather
than a corporate light. The issue of Ms Weleminsky's approach
to her responsibilities as a member of a corporate board is central
to each of the areas of concern. An overall assessment of her
ability to act as a corporate board member therefore depends on
the assessment of all of these issues. This is considered further
below.
BEHAVIOUR TOWARDS CHIEF EXECUTIVE AND STAFF
10. It is suggested that Ms Weleminsky's behaviour
towards the Chief Executive and the Executive team has been oppressive.
She is said to engage in an incessant flow of e-mails which have
the effect of seriously undermining and demoralising staff. I
have to hand some evidence of a high volume of critical and questioning
e-mails from Ms Weleminsky; and I have also noted reference to
two specific instances of e-mails to relatively junior staff which
might be regarded as oppressive, the first dating from October
2001.
11. This seems to me to be an area which could
be further explored through discussion with Board staff and examination
of e-mail traffic from Ms Weleminsky over a period. The evidence
I have available suggests a surprising, and possibly intrusive,
questioning style and may support the view that there is some
confusion between Ms Weleminsky's role as a strategic Board member
and the proper role of the Executive. Other Board members have
suggested that her approach causes distortion of priorities and
effort but a full assessment of the impact on staff of her style
of operation as a Board member needs more research.
CONFIDENTIALITY
12. It is suggested that Ms Weleminsky is not
prepared to accept that a degree of confidentiality is a reasonable
part of the normal procedure of a Board especially where certain
issues or documents are concerned. In the minutes of the CAFCASS
Board meeting of 28 November 2001 it was noted that "on the
issue of Cabinet responsibility the Chairman made a request that
members of the Board kept confidential or sensitive matters to
themselves and avoid making controversial comments wherever possible".
The Chairman urged Ms Weleminsky to "exercise judgement
and discretion" and also noted that her statements outside
Board meetings "tended to have disproportionate" effects.
In the light of the disclosure by Ms Weleminsky in July 2003 of
a draft paper for Ministers to someone outside the Board, the
Chief Executive asked for the final version of the draft to be
kept as confidential. (Chief Executive's letter of 31 July 2003
to Ms Weleminsky). Ms Weleminsky was not prepared to accept that
the paper should be treated as confidential.
13. I also now have to hand evidence that Ms
Weleminsky recently posted on the SMART Group website an extract
from the draft minutes of a Board meeting taken in private session
(which she did not attend). The discussions concerned sensitive
financial matters which affect negotiations with the relevant
Trade Union. Other members of the Board and the Executive have
expressed serious concerns about this.
14. The Performance and Conduct Procedure Note
provides at paragraph 3.2 that one of the corporate responsibilities
of Board members is to ensure confidentiality on all matters deemed
confidential by the Board. There is clear evidence that Ms Weleminsky
takes a separate and independent view of what should or should
not be confidential. Whether or not the Board has formally deemed
a matter to be confidential it does seem to me that her approach
makes it difficult for the Board to work together in developing
policy with a reasonable presumption that discussions should be
private until there is a corporate agreement that they should
not be. The degree of openness applied by any Board, against the
background of Freedom of Information legislation, should be a
matter for a common, corporate policy. Stakeholders, such as Government,
need to know what that policy is so that they know how papers,
including developing advice, may be handled. It would be unusual
for an organisation's openness policy to be established through
the actions of one Board member.
SUBMISSION OF SEPARATE EVIDENCE TO THE SELECT COMMITTEE
15. The facts of this element are clear. Ms Weleminsky
wrote to the Clerk to the Select Committee in the Lord Chancellor's
Department on 2 May 2003. Her letter gave separate evidence to
the Select Committee's study on CAFCASS. It covered the recruitment,
selection and appointment of the CAFCASS Board, the work of the
shadow Board, concerns about preparedness, finance and operation,
more recent concerns over the current situation and management
competency and style. There were also comments on governance effectiveness
and style, Board access to information, and access to information
and good practice by the workforce. In each of these areas it
is factually correct to state that the comments involve significant
criticism of the various processes, individuals and bodies involved
including other Board members, the CAFCASS Executive, the Chair,
the Lord Chancellor's Department and the present senior management
team.
16. The submission of this separate evidence
to the Select Committee gave rise to significant concerns on the
part of the Chair and other members of the Board, which were expressed
at a private Board meeting on 17 June. A series of criticisms
of Ms Weleminsky's action in submitting this evidence were made.
Ms Weleminsky is reported as having said that she had tried in
a number of ways to express her views but with little success
and was frustrated by lack of support for colleagues. She had
serious concerns regarding the Board's failure in collective governance
and felt that the Committee should be made aware of this. She
stated explicitly that "she deliberately did not consult
with fellow Board members as she did not want to compromise them
or be persuaded not to follow the course of action taken".
The Chairman of the Board wrote to the Select Committee in June
disassociating the Board from her evidence.
17. It is quite clear therefore that Ms Weleminsky
did submit evidence to the Select Committee which had not been
discussed or cleared with the Chairman or other Board members
beforehand; and that it was (and was intended to be) in conflict
with the evidence that CAFCASS itself had previously submitted
to the Committee on 13 March.
CONTACT WITH DAILY TELEGRAPH REPORTER
18. Again, the facts seem clear. The Chief Executive
wrote to the Daily Telegraph on 11 September making clear CAFCASS's
position on court appointed children's guardians, including the
issue of recruitment and pay rates. It is suggested that Ms Weleminsky
subsequently provided the Telegraph with information undermining
the Chief Executive's position based on information on the budget
shared with the Board for their meeting on 17 September. The article
in the Daily Telegraph on 18 September refers to the letter from
Mr Tross but against that specifically refers to the fact that
Judy Weleminsky had told the newspaper of a projected overspend
and said that only two-thirds of children were allocated a guardian
within seven days. Her view that delays were bound to get worse
unless the budget went up was also reported.
19. On the evidence provided, including the Daily
Telegraph article itself, this appears to be a clear breach of
confidentiality. Ms Weleminsky in an e-mail of 24 September to
another Board member acknowledges his "disappointment about
the Telegraph piece" and states that she "was in touch
with Joshua Rosenberg before our latest meeting" but decided
that she had to continue to apply external pressure, including
on the issue of resources. It seems likely that the information
she gave Mr Rosenberg was taken from the paper prepared for the
Board meeting on 17 September which was circulated on 11 September.
On the face of it this is a breach of the confidentiality expected
of any Board member.
INTERVIEW WITH FILE ON 4
20. Ms Weleminsky gave a short interview on the
BBC Radio 4 programme File on 4 on 8 July without prior notice
or discussion with the Chair, Board or Chief Executive. I have
considered the transcript of this programme. Ms Weleminsky criticised
the CAFCASS approach towards the dispute with guardians early
in the life of CAFCASS and indicated that there had been a minority
group on the Board which could not persuade colleagues of a different
approach. She also said that CAFCASS was a traditional top down
organisation, and should be more bottom-up, taking a lot more
notice of front-line practitioners and frontline staff. She indicated
that Board members were discouraged by management from hearing
first hand information. I note that the Chief Executive, Jonathan
Tross, was also interviewed for the programme and that what he
said reflected CAFCASS policy. Subsequent to the programme a number
of comments were received from staff expressing disappointment
at Ms Weleminsky's comments.
21. Again, the facts do not appear to be in dispute.
Ms Weleminsky did undertake the interview without prior notice
or discussion; it was critical of management and, particularly
given Mr Tross's presence on the programme, was likely to undermine
the broad position being put by the Board and the senior management.
COMMUNITY CARE ARTICLES
22. There are references in the documentation
to at least two articles having been submitted to the magazine
Community Care by Ms Weleminsky, on 1 August 2003 and, previously,
in November 2002. Ms Weleminsky's August article responded independently
to the recommendations of the Select Committee. The articles were
submitted without consultation with the Chairman or the CAFCASS
Head of Communications.
23. Again, the facts are clear. The issue is
one of judgement on whether independent articles by a Board member
of this type can reasonably be regarded as undermining the Board's
overall position and conflicting with the member's own corporate
responsibility.
CONTACT WITH SUSPENDED CHIEF EXECUTIVE
24. The papers provided to me also indicate that
Ms Weleminsky breached Board agreement by engaging in dialogue
with the former Chief Executive during her suspension in 2001/02.
A letter of 8 October 2002 from Pip O'Byrne, Chair of the Disciplinary
Committee, to the Chairman drew attention to an e-mail of 26 November
2001 from Ms Weleminsky to the suspended Chief Executive Diane
Shepherd. This e-mail was notable for its criticism of the Chairman
and might have been construed as interference with the disciplinary
process. It was sent in conflict with advice to Board members
not to have any contact with Ms Shepherd.
25. On the evidence available, this contact was
both surprising and improper in view of the continuing disciplinary
proceedings. In those circumstances, the criticism in it of the
Chairman, which would have been improper in any normal circumstances,
appears highly damaging.
REFUSAL TO ACCEPT BOARD DECISION ON SMART GROUP
26. The SMART Group is an unofficial website
which allowed a wide range of communication among staff and the
wider external (largely professional) group CAFCASS deals with.
Board support for it was withdrawn following a decision of the
Board which appears to have been in 2002. There had been earlier
discussion of the merits or otherwise of Board members contributing
to the SMART Group site and I found reference to an agreement
that Board members would not input to the site. Ms Weleminsky
continued throughout to support the operation of the site and
to argue against the Board decision to withdraw support from it.
On 10 October 2002 she placed an e-mail on the site indicating
her support for the SMART Group and, among other things, very
much regretting that the SMART group was now separate from the
official communication channels of CAFCASS. This was despite the
clearly expressed views of the Chief Executive (e.g. on 29 May
2002) and the position of the Board. In particular the Chief Executive
points out a number of severe management and technical disadvantages
to the SMART group approach to communications.
27. It is clear that Ms Weleminsky deliberately
ignored the express views of the Board in respect of the SMART
Group as well as the views of the Chief Executive.
ASSESSMENT
28. In looking at the evidence I have sought
to test it against the explicit duties placed on Board members
under the Performance and Conduct Procedure finalised in July
2003, together with the founding legislation and documents for
CAFCASS and also against a reasonable view of the roles and responsibilities
of Board members of Non Departmental Public Bodies. The evidence
of Ms Weleminsky's actions needs to be considered in particular
against:
a. Corporate responsibilities of Board members.
Relevant in this context is the fact that the Procedure Note points
to members corporate responsibilities to ensure high standards
of corporate governance at all times; to establish the overall
strategic direction of CAFCASS within the policy and resources
framework agreed with the Lord Chancellor; to ensure that in
reaching decisions the Board has taken into account any guidance
issued by LCD and all relevant legal and financial advice; to
treat others with respect; and to abide by corporate decisions
that have been agreed by a majority of the Board after all due
information and advice has been considered. The provision placing
a duty on members to ensure confidentiality on all matters deemed
confidential by the Board is also relevant although in my view
there is a wider issue relating to the normal standards of privacy
within which policy discussions by any corporate board can be
expected to take place.
b. Individual Board members responsibilities,
in particular the duty to engage fully in collective consideration
of issues, taking account of the full range of relevant factors,
advice and information and the need to act in good faith and in
the best interests of CAFCASS.
29. I have also considered whether Ms Weleminsky
was made properly aware of her corporate responsibilities as a
Board member. I have concluded that she was. Without now listing
again the various specific occasions it is clear that there have
been a number of meetings since the establishment of CAFCASS at
which the responsibilities of Board members in general and Ms
Weleminsky in particular have been discussed; initial training
for Board members was provided through a CMPS course which I understand
Ms Weleminsky attended on 23 November 2001; and in November 2002
the Board held an Awayday which specifically discussed how the
Board should work together. I can see no basis for any argument
that Ms Weleminsky did not understand or had not been encouraged
to understand what were her responsibilities as a Board member.
30. The six specific points detailed in paragraphs
15 to 27 above are demonstrated by the evidence available. It
is also clear that in different respects these actions challenged
or conflicted with the corporate position of the Board.
31. They therefore do much to demonstrate the
main charge which is an inability to behave corporately. The substance
of that charge rests to a significant extent on the views of other
Board members and the Chairman and it may be useful to discuss
the issue with them in order to provide a fuller picture. However,
given the evidence available, I can only conclude that Ms Weleminsky
does not see herself as a corporate member of the team and does
not regard herself as bound by normal conventions of collective
discussion and decision making. She has consistently failed to
act in a corporate manner with other members of the Board, the
Chairman and the Chief Executive, has overtly and publicly challenged
Board positions and has, on any reasonable view, breached the
normal confidentiality expected among members of a Board working
together. I think it is right to conclude on the basis of this
evidence, therefore that Ms Weleminsky does not behave appropriately
as a Board member of CAFCASS.
32. It is not entirely clear to me how far the
various charges relating to interaction with Executive members
and staff have been demonstrated by the material in front of me.
There is a great deal of assertion and some evidence from e-mails
but there would be value in exploring this question further, particularly
with staff themselves at various levels.
33. Finally I should note that I have looked
at this only from the point of view of Ms Weleminsky's behaviour
as a CAFCASS corporate Board member. I have not taken any view
on the merits or otherwise on any of Ms Weleminsky's policy positions.
Those are a matter between her and other members of the Board.
9 October 2003
Appendix 2
Copy of a letter from Rt Hon A J Beith, Chairman
of the Committee to Rt Hon The Lord Falconer of Thoroton, Secretary
of State for Constitutional Affairs and Lord Chancellor
MS JUDY WELEMINSKY
Ms Judy Weleminsky has sent the Clerk of the Constitutional
Affairs Committee a copy of a letter (dated 11th December)
from you to her setting out the reasons for her suspension and
possible dismissal as a CAFCASS board member, with a supporting
document by Mr David Crawley, Head of Office, Scotland Office.
Mr Crawley's document reviews evidence against her prepared by
Mr Anthony Hewson, the former Board Chairman.
The supporting document sets out areas of criticism
in both general and specific terms. The first mentioned specific
term is that Ms Weleminsky "presented separate evidence to
the Select Committee inquiring into CAFCASS, in a manner which
undermined the organisation and without consultation with the
Chairman or other Board members."
It appears from these papers that Ms Weleminsky may
be being punished for having given evidence to the Committee.
The Committee certainly found her written evidence most useful
and relied on it considerably when considering its Report.
I am gravely concerned that the action of sending
written evidence to the Committee might cause a witness to suffer
in this way. As you know, the Committee will next meet on 6th
January. I shall put this matter before the Committee then for
consideration, as it will need to decide what further action to
take.
17 December 2003
Appendix 3
Copy of a letter from Rt Hon The Lord Falconer
of Thoroton, Secretary of State for Constitutional Affairs and
Lord Chancellor to
Rt Hon A J Beith, Chairman of the Committee
Thank you for your letter of 17th December
concerning the suspension of Ms Weleminsky.
You expressed grave concern that the action of sending
written evidence to the committee might cause a witness to be
suspended and possibly dismissed. I agree that it would be quite
wrong to discipline someone in her position for having given evidence
to the Committee, and I would not do so. You will note that I
made no reference to this aspect of the dossier in my letter,
and I completely understand that individuals must feel free to
give evidence to Select Committees.
The dossier was substantial, and the reference to
Ms Weleminsky's decision to give evidence to the Select Committee
was part of it. Having considered the evidence submitted to me,
I proceeded to suspend her. My decision does not depend wholly,
or in part, on the fact she had given evidence to the Select Committee.
I want to make it clear that the fact of her giving evidence cannot
form part of any action against her.
Completely disregarding the fact of giving evidence
to the Select Committee, I believe the suspension was justified.
In taking these steps, my over-riding concern was the effective
operation of the CAFCASS Board, and the interests of the children
that it serves.
A decision on whether or not to dismiss has not yet
been taken in this case, and the comments from Ms Weleminsky
on the allegations made against her by the former Chairman are
being considered carefully.
The final decision will be made by Charles Clarke,
as responsibility for CAFCASS is due to transfer to the Secretary
of State for Education and Skills on Monday 12th January.
I will ensure that he is aware of your concerns and the content
of her letter. But I make it clear that no disciplinary action
can be based on the fact of giving evidence to the Select Committee.
Having regard to the reference in Mr Crawley's dossier to this
allegation, I should have made this clear. Even ignoring this
allegation, suspension was plainly justified.
I am sorry that I cannot discuss the details of the
case with you, but this is being treated as a serious matter and
Ms Weleminsky's response requires careful consideration.
8 January 2004
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