Evidence submitted by HM Magistrates'
Court Service Inspectorate (MCSI)
STATUTORY REMIT
OF MCSI
1. MCSI welcomes the decision of the Constitutional
Affairs Committee to examine family justice and the family courts.
2. Under the terms of the Justices' of the
Peace Act 1997, HM Magistrates' Courts Service Inspectorate (MCSI)
is required to inspect and report to the Lord Chancellor on the
organisation and administration of magistrates' courts for each
magistrates' courts committee (MCC) area. MCSI's powers to inspect
CAFCASS are set out at section 17 of the Criminal Justice and
Court Services Act 2000. The same Act also established CAFCASS.
3. Under the Courts Act 2003, from April
2005 MCSI will cease to operate and will migrate to become HM
Inspectorate for Court Administration (HMICA) with responsibilities
for inspecting the system that supports the carrying out of the
business of the courts (HM Courts Service). Its responsibilities
for inspecting CAFCASS will continue in England. In Wales, where
under provisions in the Children Bill currently before Parliament
CAFCASS will be devolved to the Wales Assembly, HMICA will inspect
the service.
BACKGROUND
4. MCSI has not routinely focused its inspection
of MCCs on family proceedings. However, in May 2001 it published
"A Review of Case Administration in Family Proceedings Courts".
Since April 2001, MCSI has built up a systematic body of inspection
evidence and has published 20 reports of the inspection of CAFCASS.
These include Seeking Agreement (December 2003), the report of
a Thematic Review of dispute resolution schemes involving CAFCASS
at an early stage of private law proceedings. This report is specifically
relevant to proposals that are set out in the Green Paper Parental
Separation: Children's needs and parents' responsibilities (July
2004) and MCSI's headline response to the consultation is set
out below at paragraphs 18-24.
5. MCSI gave oral evidence to the Select
Committee of Inquiry into CAFCASS in April 2003 and submitted
its inspection reports as advance information.
6. MCSI's relevant recent sources of information
for the current Inquiry include, in particular, its inspection
reports:
Thematic Review—Seeking Agreement
(December 2003).
Overview report—Towards Year Three
(April 2004).
Tackling Delay (July 2004).
Training and Quality Assurance for Service
Delivery (July 2004).
Managing CAFCASS (August 2004).
South West Region (October 2004).
7. All the above reports are available on
MCSI's website at: www.MCSI.gov.uk
THE FAMILY
JUSTICE SYSTEM—RECOGNITION
AND DEVELOPMENTS
8. There is widespread recognition that
although there are courts that are not explicitly called "family
courts", there is a well-established set of arrangements
across England and Wales. Government departments and a wide range
of professionals know these as "the family justice system".
There have been many initiatives to continue to develop and improve
the effectiveness of the family justice system. For example, there
have been the President's Inter-disciplinary Committee, the interdisciplinary
conferences held every two years (with published papers), publications
such as Working in the Family Justice System (1998), the outputs
from The Advisory Committee on Family Law and the Protocol for
Judicial Case Management in Public Law Children Act Cases (2003).
This year has seen the establishment of the Family Justice Council.
MCSI believes that setting up HM Courts Service will also help
further align practice, procedure and efficient deployment of
resources in family proceedings.
THE FAMILY
JUSTICE SYSTEM
AND ITS
LACK OF
OVERALL AIMS
9. However, MCSI also notes the absence
of clear and agreed aims for the family justice system. Instead,
there is a range of arrangements such as departmental objectives
and public service agreements. Some of these, such as increasing
the level of contact between children and their separated/divorced
parents, approach what might be considered as an example of a
family justice objective. Delivering due process and justice might
be considered as another. But, in family matters, justice for
a parent may conflict with the need to ensure justice and welfare
for the child.
10. Clear aims for the family justice system
would in turn facilitate the development of objectives, performance
indicators and targets. These would help assess the performance
of the family justice, identify where it needs to improve, and
make better use of the considerable resources that it utilises.
These developments should encourage the specification of the next
generation of judicial statistics that need to be generated.
OUTCOMES FOR
CHILDREN
11. Among the key aspirations underpinning
Every Child Matters and the children bill currently before Parliament
is defining what is meant by better outcomes for children. To
support this ambition, the process has begun of setting set out
measurable indicators. These should provide more reliable evidence
as to whether, over time, such outcomes are being achieved. Clear
links will be needed to join up these kinds of developments with
the family justice system in order to assess its contribution
to the delivery of better outcomes for children.
12. Joint Area Reviews are one of the children
bill provisions that aim to link the contribution made by a wide
range of services in some 150 areas across England to achieving
improved outcomes for children. There is an opportunity to link
such outcome measures related to services for children with court
generated evidence about those children who are the subjects of
decision-making in family proceedings.
EXPECTATIONS OF
PROFESSIONALS AND
THE PUBLIC
ABOUT THE
AIMS OF
FAMILY JUSTICE
13. MCSI's inspections of CAFCASS show that
once one moves beyond protecting and safeguarding children who
are, or may become, the subject of family proceedings, there are
wide differences of professional view about the purpose of family
justice related work, as well as the best ways of achieving improved
results. Similarly, it is increasing apparent to MCSI that the
parents and children as service users whose views inspectors elicit
have very different opinions. These cover what they want and expect,
as well as what they feel entitled to and need from their dealings
with the family justice system.
14. There are also different expectations
by the public at large, and some professionals about what are,
or should be, the aims for care proceedings initiated by local
authorities on behalf of the State (Children Act 1989 section
31), as well as how in practice they are delivered. The position
is sometimes characterised by the criticisms that either the authorities
have acted precipitously early or far too late. Whilst there may
well be more agreement about the need to ensure the best welfare
outcomes for the child, there are differences of view about the
optimum ways of achieving these.
15. Some of the high profile views of groups
representing parents of both genders about disputed residence
and contact (Children Act 1989 section 8) also reveal a wide range
of opinions. Here, there seems to be a lack of consensus about
whether the current arrangements for making decisions about children
in private law family proceedings are satisfactory. Again, as
with public law, there are differing views and expectations about
how child welfare is best assured in the context of the rights
of both the children and their parents.
PROTOCOL FOR
JUDICIAL CASE
MANAGEMENT IN
PUBLIC LAW
CHILDREN ACT
CASES (2003)
16. The ambitions of the courts led Protocol
(to enable the court to deal with every care case justly, expeditiously,
fairly and with the minimum of delay) are wholly commendable.
MCSI visits to CAFCASS and courts suggest that significant progress
is being made in achieving the Protocol targets. However, the
Protocol requires a great deal of interagency co-operation and
commitment, particularly from local authorities and CAFCASS, to
feed into the courts. In many areas of the country, CAFCASS is
able to play its full part. But in many other areas, it continues
to have difficulties in appointing children's guardians promptly.
This apparent lack of capacity is perceived by courts as significantly
undermining their ability to meet Protocol targets. It also puts
children at risk in the proceedings if their voice and needs are
not properly heard through the children's solicitor and children's
guardian (known as the "tandem model"). As MCSI has
stated in its recent reports, it means that in some areas and
for some children, CAFCASS is failing in its statutory duty to
safeguard and promote the welfare of children in family proceedings,
as set out in section 12(1) of the Criminal Justice and Court
Services Act 2000, although it is not possible to put an exact
figure on this.
PRIVATE LAW
APPLICATIONS—DELAY
17. The effectiveness of family proceedings
dealing with contested applications around contact and residence
under section 8 of the Children Act 1989 is also dependent to
some degree on how well courts and CAFCASS work together. Again,
MCSI regrets having to report that delay in CAFCASS filing welfare
reports in private law in a few parts of the country is up to
26 weeks. In MCSI's view, this is chronic and unacceptable. CAFCASS
continues to address these matters nationally. In MCSI's view,
there needs to be much greater flexibility in private law reporting
by CAFCASS, particularly where a shorter and speedier report is
needed about a single issue. This in turn would help, to some
extent, to free up capacity to deal with some of the most complex
cases, including where in the higher courts the child is made
a party under the provisions of rule 9.5. In its reports, MCSI
has also urged CAFCASS and courts to agree protocols for the ordering
of section 7 welfare reports. MCSI has undertaken extensive reading
of CAFCASS private law reports. As such, it has some doubts whether
the repetition of much background material from the applicants'
and respondents' statements and other supporting documents about
the history of the relationship and its breakdown adds sufficient
value for the courts to aid them adjudicate issues, such as the
child's contact and residence. The proposals in the Government's
Green Paper discussed below offer CAFCASS a chance to re-align
its resources and focus in private law matters.
SUMMARY MCSI RESPONSE
TO THE
GOVERNMENT'S
GREEN PAPER
PARENTAL SEPARATION:
CHILDREN'S
NEEDS AND
PARENT'S
RESPONSIBILITIES
(JULY 2004)
18. MCSI welcomes the Government proposals
set out in The Paper. The proposals are far reaching. Current
arrangements demonstrate a need for a "social" rather
than "legal" gateway into the system of Family Justice.
MCSI is of the view that the full implication of the proposals
is the recognition of the need for a social work service for those
families facing relationship breakdown.
19. CAFCASS is given a high profile throughout
most of The Paper and is well placed to take on and develop the
social work tasks set out in the Government's proposals. MCSI
anticipates that this would entail a reconfiguring of CAFCASS
activity with consequent training implications.
20. The Paper provides a framework for a
flexible, responsive, customer focused system for family justice.
The proposed system opens up opportunities to provide support
(care) alongside the enforcement of court decisions if necessary
(control). Social work is at root the balance of care and control.
However, MCSI considers that service users do not see CAFCASS
as a support service and it would need to be marketed as such.
21. Until recently, Family Justice has not
been subjected to systematic research or rigorous inspection.
Consequently, views about it, whether supportive or critical,
tend to be based on anecdotal rather than systematic evidence.
In particular, there is little if any evidence about outcomes
of the Family Justice System.
22. In MCSI's experience, there is little
systematic evidence to support the claim made about in-court conciliation
in The Paper that "such an approach is known to work where
it is currently used". MCSI urges caution before steps are
taken to implement the proposal to extend in-court conciliation
systems nation-wide. Ideally, much more research evidence is needed
to underpin the future direction of Government policy.
23. The Paper notes the extent and range
of emotions bound up in adult separation and separation from their
children. Based on meetings with service users and observations
of practice, MCSI concludes that answers to almost all of the
consultative questions need to be set in the context of such emotional
responses. As such, in order to provide the right service for
parents at the optimal time, intelligent, sensitive, child focused
and systematic assessment skills will need to be brought to bear.
24. Implementation of many of the Green
Paper's proposals is contingent in each case on the early assessment
of risk to children, adults and the public. Currently, there is
no tool for systematic risk assessment in use by CAFCASS or the
courts.
MCSI'S CONCLUDING
COMMENTS TO
THE COMMITTEE
25. MCSI concludes that there is a need
to try and reach agreement on a set of aims and key objectives
for the family justice system, as currently constituted. All other
developments, such as more effective interagency working by all
the main constituents of the family justice system, need to contribute
towards such aims and objectives. In MCSI's view, an agreed set
of aims and objectives would help to:
— clarify the roles of all key
stakeholder organisations and their work;
— provide a framework within which
to locate further developments across the family justice system;
— help to reduce some of the public
and professional confusion about achieving child welfare within
family proceedings; and
— encourage explicit links between
the children bill provisions and the family justice system aimed
at achieving assessed better outcomes for children involved in
family proceedings.
Arran Poyser
Director
Inspection of CAFCASS
1 November 2004
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