Evidence submitted by Napo
A. INTRODUCTION
Napo welcomes the opportunity to submit written
evidence to the second inquiry into the functioning of the Family
Courts since 2003.
Napo is the Trade Union and Professional Association
for Family Court and Probation Staff. Napo currently has just
over 620 members in CAFCASS, the majority of whom are practitioners
and managers working within the private law arena, but Napo also
represents an increasing number of public law and newly appointed
staff undertaking both public and private law work. Collectively
Napo's members have a substantial number of years' experience
of assisting the courts to resolve family disputes, following
separation or divorce, in the best interests of children. Napo
has overseen many changes in emphasis of the tasks over the last
20 years and therefore feels well placed to comment on the issues
that the Committee is currently investigating.
B. INITIAL INQUIRY
Napo gave both written and oral evidence to
the first inquiry into the functioning of CAFCASS, the Children
and Family Court Advisory and Support Service. In that evidence
in March 2003 Napo concluded:
Napo gave both written and oral evidence to
the first inquiry into the functioning of CAFCASS, the period
has been characterised by sound management intentions, which have
not always been implemented in the workplace. For the future,
CAFCASS urgently needs to develop a training strategy for existing
staff and new recruits. It needs to examine the feasibility of
a trainee or apprenticeship programme. CAFCASS needs to develop,
in conjunction with staff, an IT database for case management.
CAFCASS needs to take urgent steps to reduce unallocated cases.
The organisation needs to develop a workload measure for practitioners
and managers. CAFCASS needs to develop its Human Resources policies
in order to retain and attract qualified workers. CAFCASS needs
to implement family-friendly policies, which would have the effect
of encouraging a diverse workplace".
Napo acknowledges that improvements have and
are being made in the management of CAFCASS. However, Napo believes
that that there are still a number of areas that require significant
attention, including the long-term training strategy and the proposals
for a case recording system. Napo welcomes the reduction in unallocated
cases in some geographical regions, but still believes that the
time taken to complete cases because of staff shortages and workloads
is unacceptable. There is still need for human resources policies
to be developed in order to attract and retain qualified workers,
and CAFCASS would benefit from family-friendly policies to encourage
a diverse workforce.
C. GREEN PAPER—PARENTAL
SEPARATION: CHILDREN'S
NEEDS AND
PARENTS' RESPONSIBILITIES
Napo has submitted evidence on the Government's
Green Paper on Parental Separation. Copies of this will be made
available to the Committee if required. In its evidence Napo gave
cautious support to the Green Paper and its emphasis in supporting
parents to "problem solve"and focus on their children's
needs in an early stage of the dispute. In addition, Napo concurred
with the view that there should be improved information and support
made available to separating parents, with a view to avoiding
unnecessary adversarial court disputes. This information needs
to be a mix of legal advice and information that enables parents
to better understand their children's needs and responses to the
separation, and what will help them manage this in the least problematic
way. Napo also recognises that the management of parental separation
is an ongoing process and not a single event and that there needs
to be a broad range of information and support services available
to parents and children at different stages of the process.
D. KEY AREAS
1. Is the Family Court System being run effectively?
Napo is concerned that any analysis of whether
the Family Court System is being run effectively should be based
on the underlying principles of the Childrens Act and the focus
should be on the welfare of children. Recent activities of some
pressure groups and the media attention they have achieved, should
not obscure the intention of the Family Court System which is
fundamentally to meet the welfare needs of children. The definition
of "effective" is therefore crucial.
Napo supports the principles enshrined in the
Green Paper of early support and intervention with the small proportion
of families that are accessing the Family Court System. There
are already many examples of good practice in which as a result
of collaborative working between families, the judiciary, CAFCASS
staff and other professionals, effective resolutions are reached.
Napo would be supportive of continuing development of this work.
Napo is, however, of the view that considerable
caution needs to be exercised in understanding the underlying
problems that the Family Court System may appear to present. The
Family Court System cannot resolve all family disputes to the
satisfaction of all involved, nor did it create them in the first
place. The majority of cases coming before the courts are extremely
complex and time consuming and courts are often faced with managing
contradictory needs and unrealistic expectations.
It is Napo's view that the effectiveness of
the courts is significantly impaired by delay, lack of court time,
the over adversarial approach adopted by some of the players,
lack of access to specialist resources and in some areas poor
court buildings and infrastructure. These issues will be referred
to again.
Napo would make a number of specific points
about the running of the Family Court System:
(a) Pressure to reach agreement
Napo fully supports the principle currently
underlying much Family Court work which encourages parental agreement
and the resultant reduction of conflict at as early a stage as
possible. However, Napo is also concerned that pressure on parents
to resolve matters early may lead to a greater disregard of their
children's wishes and feelings and in some situations their safety.
Specifically, where professionals have been involved in assisting
the parents to reach agreement, then ensuring that the needs of
the children remain central to any decision making becomes a joint
responsibility with the parents. The experience of Napo members
would suggest that at times of heightened distress following separation,
there are occasions where one or both parents struggles to recognise
how their children are feeling and to listen to them adequately.
(b) Reports
Napo believes, based on its members' experience,
that the majority of reports that they prepare are on families
with difficult and complex problems and as such represent an appropriate
use of resources. In recent years, families with less intense
problems have been diverted into the Mediation Service and therefore
CAFCASS' input with parents and initial liaison at First Directions
Hearings have significantly reduced inappropriate referrals for
reports. Napo believes, therefore, that even if the proposals
in the Green Paper are adopted, the potential for reduction in
the number of requests for CAFCASS reports may be limited. This
in turn leads to questions of resources as many of the proposals
contained in the Green Paper, for example rolling out of initiatives
such as the Family Resolutions Pilot, suggests that CAFCASS would
be involved in additional work.
Napo believes, therefore, that there has to
be a full cost analysis undertaken of the additional resources
needed to implement any proposals that would lead to greater efficiency.
Napo believes that work with hostile separated parents is difficult
and demanding and requires great emotional and mental energy from
practitioners. In Napo's experience overworked and exhausted practitioners
are unlikely to be as effective in their work.
(c) Safety from harm
Allegations of domestic violence and issues
of the safety of children are a significant feature in family
proceedings. Napo is concerned that the current focus on parental
rights and ill-informed views from some commentators, should not
lead to a change in culture, in which the safety of both parents
and children is considered a high priority.
Current systems for managing these issues would
benefit from further research and consideration. For example,
Napo members report that parents do experience pressure from the
judiciary and legal representatives to avoid Finding of Fact Hearings
and on some occasions may agree to a Schedule of Admissions. Such
admissions can sometimes represent only a small part of any alleged
violence and in Napo's view do not then assist any assessment
of risk. Napo also believes that many court facilities are unsatisfactory
in that separate waiting areas are not provided and that victims
of alleged violence often do not have access to the resources
offered to vulnerable witnesses in the criminal courts, such as
evidence by video link
A strategy paper in relation to Napo's approach
to domestic violence is available at www.napo.org.uk/cafcass/
(d) Mediation
Napo welcomes the Green Paper's commitment to
continue to promote mediation as a means of supporting parents
to resolve disputes without recourse to court. This can only result
in greater efficiency and effectiveness. However, there are occasions
where mediation may not be appropriate, particularly where child
protection or violence issues are live. In this context Napo members
have expressed concern about the current requirements for parents
to explore mediation prior to taking matters to court if they
wish to access public funding. This can also be problematic where
contact has completely broken down, can add to delay in the restoration
of contact where appropriate and can potentially, therefore, damage
the relationship between the child and non-residential parent.
(e) Role of CAFCASS practitioners
Within many courts, CAFCASS practitioners are
actively involved in problem solving and dispute resolution. Good
relationships often exist with local judiciary and legal representatives
and significant efforts are made to resolve disputes at an early
stage to avoid costly court hearings. Napo recognises that a more
consistent approach could be developed nationwide and therefore
welcomes many of the suggestions in the Green Paper. However,
Napo does not believe that the proposals contained in the Green
Paper which are aimed at greater efficiency in the Family Courts
necessarily represent a significant shift for CAFCASS practitioners.
Underpinning the work of private law practitioners is an understanding
that parents in dispute continue to hold responsibility for their
children and continue to do so long after the court is involved
in their family life. Napo believes that a problem solving approach
that encourages all parties to respond to the feelings and needs
of the children lies at the heart of enquiries and reports and
informs all intentions in court.
(f) Best practice
Napo recognises that there needs to be dissemination
of what is currently considered to be best practice in respect
of in-court conciliation and that is likely to need additional
resources. Napo also believes that there needs to be monitoring
in the interests of effectiveness and accountability in respect
of ensuring that safety and diversity issues are fully addressed
in the process. Napo believes that in most areas systems are already
in place to ensure that reports are only ordered when necessary
and that it is unlikely that the number of reports will be reduced
significantly as the Green Paper emphasises. Napo reinforces its
view that the high levels of hostility, domestic violence, substance
misuse and mental illness are significant features in many of
CAFCASS reports, and it may therefore be unwise for decisions
to be made at an earlier stage in court without an informed assessment
of the impact of parental behaviour on children concerned.
2. Do Family Court Judges have sufficient
powers?
Napo is not convinced that the arguments have
been made to support a significant increase in judicial powers.
Napo is more concerned that the lack both of in-court resources
and more specialist resources within wider society effectively
limit the options available to the judiciary.
Napo believes that a more punitive approach
to parents is likely to be unhelpful and that the suggestions
made in the Green Paper that judges need additional powers to
jail parents in certain disputes would be counter productive.
This would cause considerable hurt to children, would demonise
one parent, and could lead to admission to local authority care.
If the parties are deeply entrenched and the courts need a punitive
model then one should be developed that does not impact adversely
on children. Consideration should be given to therapeutic intervention
or the use of the fine. It is difficult to envisage circumstances
where children would want to see their father send their mother
to jail, or vice versa. Napo has a number of other comments related
to the powers of the courts which have also been referred to in
the response to the Green Paper.
Napo, whilst concerned about a punitive model
towards parents, would however support a model which holds parents
to account on behalf of the court.
(a) Safety
Napo reiterates its earlier comments on the
need for judges to focus on the importance of parental and child
safety and to follow the President's Direction in relation to
domestic violence. The experience of Napo members is that implementation
of these guidelines are inconsistent across the country. We would
welcome any emphasis on the need to ensure that contact is safe
for both the child and the main carer. It is now well accepted
that where there is abuse or neglect, exposure to domestic violence,
or severe parental conflict the effect on children can be extremely
damaging.
(b) Shared residence
Napo does not support proposals by some that
residence of children should be automatically split between the
parents. Napo members have daily contact with children who are
suffering as a result of their parents' inability to focus on
their welfare rather than the parental argument. Experience suggests
that court arguments over shared residence are not infrequently
a means by which parents play out their disagreements and power
struggles rather than a response to the child's needs. Napo would
not favour any change in legislation that altered the primary
focus of the court from the welfare of the child.
Children's needs must continue to be considered
on an individual basis. The families Napo members encounter come
from a wide variety of backgrounds and the adults within these
families consequently adopt different parenting roles. This could
be influenced by many factors including culture, gender, employment,
finances, class, health and disability. The gender of a child
may also be a factor that affects how parents relate and interact
with them. The way in which parents carry out their responsibilities
may change over time according to the age and gender of the child.
Siblings may have a different quality of relationship with one
parent than the other. All these factors Napo believes need to
be taken into account when determining the right arrangements
for the child following separation. An automatic "one size
fits all" may meet the needs of the parents but in all probability
will not meet the needs of the child. Overall Napo does support
the position that for most children it is in their best interests
to have a meaningful relationship with both parents where it is
clearly safe to do so.
(c) Parental accountability
Courts, and generally non resident parents,
are rightly frustrated in a small proportion of cases where the
resident parent refuses to co-operate with court proceedings or
court orders. Napo agrees that this is a genuine problem, but
does not consider there to be an easy resolution which maintains
a focus on the child's welfare. Napo is well aware of situations
where the conscious or unconscious behaviour of the resident parent
effectively damages a child's relationship with the other parent,
or other family members.
It has been suggested in the Green Paper that
CAFCASS should routinely contact parents following the making
of an order. Whilst in sympathy with the intentions behind this
proposal, Napo believes that this would be against the principle
that the proceedings are private and that once they are concluded
the parents have a responsibility to carry on without any undue
interference from the state, and should be encouraged to do so.
Napo believes that the process of contacting a parent after proceedings
may cause them to identify problems that they may otherwise have
resolved themselves. It could create a situation of making them
dependent on outside agencies that was unnecessary.
However, Napo members do report concern that,
after an order is breached following a final hearing, it can often
take a considerable amount of time for the matter to be heard
again by the court, during which time the parent/child relationship
can be again disrupted. There may therefore be merit in exploring
the possibility of a rapid response system which would be a form
of regionalised breach court whereby matters could be heard quickly
with the assistance of a CAFCASS officer, as at first direction
hearings, and the problem resolved and contact restored where
appropriate. Care would need to be taken to ensure that parents
did not abuse this process in order to have their case in effect
reheard.
(d) Support for families in proceedings
Napo is concerned at the lack of an adequate
range of support for families whose problems are deeply entrenched
and believes this is a significant issue for both Family Court
Advisors and the judiciary. Most areas report a lack of access
to counselling and therapeutic services, for example within the
NHS. Where services do exist they are generally overstretched
and waiting lists can effectively make referral meaningless from
a court perspective. This concern is also reflected in the inability
of many social services departments to offer services to families
where children are not within the child protection system. Napo
members are concerned at the number of children who are emotionally
damaged by these proceedings, but whose needs local authorities
are unable to prioritise.
Napo can see possible benefits in some increase
in the number of Family Assistance Orders in order to provide
a short-term level of support following the making of a final
order. This would be appropriate in situations where there was
a clear focus and tasks to carry out and informed consent had
been obtained from all parties and the children. Napo believes
that it is not really effective when the judiciary make Family
Assistance Orders without the involvement of CAFCASS staff, primarily
because in such cases there is generally a lack of clarity about
the purpose of such orders, lack of considered agreement and often
an expectation that CAFCASS staff have at their disposal "miracle"
cures to intractable problems.
Families with complex problems are often in
need of more long term intervention than the Family Assistance
Order can provide. However, Napo believes that if an increase
in the number of Family Assistance Orders occurs there would need
to be specific resources set aside to ensure this work is carried
out effectively and that it is not marginalised by the pressure
of more immediate work for the courts. Napo would also welcome
additional resources to allow those parents who are particularly
intransigent to have access to intensive therapy and support for
change and the increased availability of creative programmes.
(e) Enforcement
Napo believes that an approach which focuses
on ensuring parental co-operation could be seen as more advantageous
for the children concerned than punitive orders for non-compliant
parents that are likely to harden attitudes further. Napo therefore
reinforces the need to focus on parental accountability rather
than punishment.
3. Issues surrounding delay in the system
Delay is a significant issue within some courts
and can result in long term damage to children and limit the courts'
ability to intervene effectively. Napo members frequently report
serious delays as a result of lack of judicial time and this problem
is often exacerbated in the higher courts. Napo members report
cases which, despite having been listed for several months do
not go ahead on the day due to double or multiple booking in the
judge's list. It can then lead to a further adjournment of two
or three months or longer before a new date can be agreed. In
situations where there is currently no contact taking place this
is particularly damaging. It is a common experience for public
law cases to take priority in a judge's list, which in Napo's
view reflects a lack of understanding of the emotional harm experienced
by children during parental separation and conflict. It is also
the case that such delays are extremely expensive in relation
to professional time and the cost of public funding.
Delay is also a significant feature in accessing
expert opinion. In many areas there are very limited numbers of
child and adult psychologists and psychiatrists available for
court work. It is therefore not uncommon for there to be an adjournment
of several months simply waiting for an appointment to see a specialist.
It is also the case that Napo members report
frustrating delays as a result of parties meeting counsel on the
morning of a full hearing. It is commonplace for CAFCASS officers
to spend several hours waiting while barristers introduce themselves
to clients, familiarise themselves with the case and then become
involved in advice giving and potential problem solving. It is
also not uncommon for this to lead to a further adjournment as
time allocated for a judge to hear the case has then been lost.
Napo would support a system which ensured that counsel were fully
briefed prior to any final hearings and options for resolution
had been explored fully before the date of the hearing itself.
Delay in allocating and processing S7 reports
has been an issue since the creation of CAFCASS in April 2001.
The causes of the delay have included a lack of court time and
space, insufficient administration, increasing demand in some
areas, too few CAFCASS staff and a lack of judges.
However, by the Autumn of 2004, it is clear
that in many places backlogs are not as severe as they have been
in the past. Napo is nevertheless concerned that the regular quarterly
figures which detail time taken to allocate reports no longer
seem to be available.
Case management
Napo welcomes and supports the principle of
good case management to minimise delay and to ensure continuity,
as being in the best interest of children, where this is practically
possible. Napo does not believe that all delay is necessarily
negative. A reasonable amount of time for report preparation allows
the writer to work with a family, to observe contact, to allow
parents space to reflect on discussions, and importantly to allow
for the children to be consulted. Napo believes it is commonplace
for Children and Family Reporters, with parental consent, to trial
arrangements that can then be reviewed at a later stage. Such
delay can be constructive in assisting parents to reach a final
informed agreement and has the benefit of being more successful
than a hastily imposed Court Order.
Napo would emphasise that the most significant
and problematic delays are usually with the court process itself,
significant waiting times for hearings and over-listing for contested
hearings, which means that many parties do not get heard on the
day which is initially appointed.
4. Whether people using Family Courts are
getting the service they deserve
Napo finds it difficult to define the concept
of "the service they deserve". The Family Court System
should be run efficiently and paramount should be the best interests
of children. A number of assertions have been made recently about
bias in the Family Court System particularly against fathers.
However, Napo's own research in this area refutes this suggestions
and demonstrates that there is a significant increase in contact
between child and non resident parent (often the father) as a
result of the work of CAFCASS officers.
During the summer of 2002 Napo undertook a survey
of the work of the Children and Family Court Advisory and Support
Service in contested residence and contact cases. In all 300 families
were detailed in the survey. The survey found that, at the commencement
of proceedings in 156 cases children were having direct contact
with the parent with whom they were not resident. In 126 cases
there was no contact at all.
By the end of the proceedings, which often took
many months, in only 18 cases was there no contact with the father,
and in seven of those domestic violence was established as a fact.
No contact had therefore fallen from 42% to 6% of cases.
Napo would refer to the work of Carol Smart
and others in respect of the difficulties encountered by children
who are subject to shared care arrangements. Napo also refers
to evidence which suggests that some children do not see their
parents as often as they or their resident parent would wish,
and that split home arrangements can be highly disruptive. The
Women's Aid movement has complained vociferously in the past that
often children are forced to see dangerous fathers. Napo would
wish to see independent research funded to investigate this concern
further.
(a) Problem solving versus adversarial approaches
Napo endorses the view that separating parents
should be given high levels of support to enable their difficulties
to be resolved without recourse to adversarial court proceedings.
However, once court proceedings have commenced, this should not
mean that a problem solving process inevitably stops. Napo believes
there has been misunderstanding in the Government Green Paper
about the routine work of CAFCASS staff. Napo believes that the
Government Green Paper fails to recognise that most Children and
Family Reporters, through the process of preparing a report, work
with families with a view to supporting the adults concerned in
order to reach agreement in the best interests of the children.
In reality most Children and Family Reporters do not just comment
or commentate on proceedings but are actively engaged in a problem
solving process with the family, in the way the Green Paper actually
recommends. It is as a consequence of this approach that contested
hearings are often avoided and that parents do receive an efficient
service.
Napo also recognises, however, that there is
a value in some situations in cases being fully heard by a judge.
Many parents are unable to reach agreement, a not uncommon reason
for this being a belief that this would imply that they had given
up on their child. A judicial decision, is for some parents the
only way that proceedings can be concluded. Hearings also allow
judicial comment on the arrangements or the behaviour of parents,
which at times can be very powerful.
(b) Domestic violence
Napo reiterates its concern at the impact of
domestic violence within families. It is Napo's belief that the
Green Paper survey of court files, which identifies domestic violence
as a feature of 35% of cases coming from the courts is probably
an underestimate. Napo members report that often domestic violence
is not referred to in initial court documents but that allegations
become more apparent either at first directions hearings or in
the course of report preparation. In Napo's own survey domestic
violence was a feature in 77% of reports on which Napo members
were working. Napo believes that once the new application and
response forms are introduced, directly asking the question about
domestic violence, the figure of 35% will significantly rise.
Napo believes that it is generally in most children's
interests that they continue to have contact post-separation with
a parent with whom they have established a relationship and even
where this has not been the case most children are assisted by
knowledge of and contact with their non-residential parent. Effective
court decisions balance this with the need for child and parental
safety.
(c) Court premises
Napo believes that many court premises currently
employed are unsuitable for Family Hearings and have insufficient
private and comfortable interviewing space. Napo believes that
families involved in proceedings deserve a better service than
this.
Napo is also concerned that problem solving
can be equated by some in the legal process to agreement seeking
and attempts to achieve this in court create difficulties. Napo
believes that within the pressurised environment of a court building,
and with limited time available, the parents can be persuaded
to reach agreements that do not take into account the children's
wishes or address fully any safety factors. Napo believes that
the professionals involved in assisting parents, including the
judiciary, legal representatives and CAFCASS officers, need to
take this into account and be fully informed of any risks involved.
Where a problem solving approach is being taken, there needs to
be adequate, safe, private, comfortable facilities and this is
often not the case. Napo believes that it can often be beneficial
for a short adjournment, away from court buildings, to take place
to allow for more consideration.
(d) Additional child-centred facilities
In the Napo survey conducted in 2002, two-thirds
of questionnaire respondents believed that additional child centred
facilities would have assisted their work. A range of facilities
for interventions would have been of considerable assistance in
a quarter of the individual cases. In the survey 10% of the cases
studied would have benefited from the provision of supervised
contact facilities. Several staff reported that facilities were
unavailable for older children and the need for supervision contact
was a critical issue. Others felt that therapy and parenting classes
would have assisted their work. Others felt that the service from
Family Courts would be improved by a much wider range of resources
ranging from the provision of extra support workers for children,
anger management classes, and specialist Muslim support workers
and interpreter facilities.
(e) Accessing data from other agencies
The survey also found that the vast majority
of respondents were able to access data from other agencies quickly
and easily. However, in a quarter of cases there were difficulties
experienced with one or more key agencies. Improvements in inter-agency
liaison would therefore increase the quality of service that people
who use the courts received.
The main problems were: lack of access to criminal
records; problems with police domestic violence units; difficulties
in accessing information from probation, health and social services;
and specifically issues with confidentiality and data protection
with mental health agencies.
E. CONCLUSION
Napo recognises that the Family Court System
is often not the best place to resolve complex family disputes
and welcomes any thoughtful attempts to improve its functioning.
However, it is important to recognise that the court system is
responding on society's behalf, to what are often intractable
problems that parents cannot solve themselves, and which do not
lend themselves to easy resolution. Napo urges the Committee to
be cautious about simplistic solutions in which the needs of the
children may become secondary to the "rights" of the
parents.
Napo does not believe there is any systematic
bias in the Family Court System and notes that no independent
evidence has yet been produced to demonstrate that there is. Napo
members do report individual experiences where assumptions about
gender roles are a cause of concern, for example where the father's
role in a child's life is given inadequate acknowledgemen, and
Napo would not support sexist attitudes of this sort. However,
we do not believe that this is systemic and would further note
that such attitudes impact on both men and women. Research also
indicates that a significant feature in maintaining gender based
sterotypes in relation to parenting come from parents themselves.
Experience and evidence would show that most fathers do not seek
residence, even when they are raising criticism of the mother's
abilities. Many resident parents, often mothers, are distressed
at the failure of the non resident parent to spend more time with
their children and Napo members are commonly asked if there is
a way to force a father to have contact, something which the law
has no ability to do.
There is, however, a case for improving inter-agency
communication, for more child contact centres, for a reduction
in delay, for greater access to resources within the health and
social services and for additional resources for early resolution
and intervention.
Napo supports the thrust of the Government's
Green Paper in its focus on early resolution. Napo believes that
many of the suggestions, particularly the emphasis on supporting
parents to problem solve and early intervention, are already an
integral part of the work of Children and Family Court Reporters
and would seek the Committee's support in supporting and developing
the work of CAFCASS as a key player in the Family Court System.
Harry Fletcher
Assistant General Secretary
Sian Griffiths
National Vice-Chair
Liz Moxham
Chair Family Court Committee
2 November 2004
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