5 Guardians and independent social
55. The Legal Services Commission proposes to stop
funding for independent guardians and independent social work
in cases where a guardian is not provided under Rule 9.5.
In addition, the Commission proposes to cap fees for independent
social work at the same level as that paid by the Children and
Family Court Advisory Support Service (CAFCASS). By way of explanation,
the consultation document states that: "Where the court appoints
a solicitor to act as guardian or another non-CAFCASS or [non-]CAFCASS
Cymru guardian, it is not reasonable for the legal aid budget
to meet these costs. CAFCASS and CAFCASS Cymru provide an appropriate
legal and professional framework for the delivery of quality assured
guardian services and are funded by government for that purpose.
If they fail in their duties then this should be challenged appropriately."
56. It is clearly the case that a proportion of such
services have been provided from the legal aid budget until now.
If there is to be a transfer of responsibility there must also
be a very clear and reasonably generous transfer of resources
too. Having said that, there is clearly evidence of substantive
benefits from the current approach to providing these services,
and administrative tidiness from the point of view of a government
department is not a necessary and sufficient cause for change.
57. Further, while Baroness Pitkeathley, former chair
of the board of Children and Family Court Advisory Support Service
(CAFCASS), claimed in the organisation's 2005-06 annual report
that the service was no longer a "problem organisation",
CAFCASS still seems to be under pressure. We note Sir Mark Potter's
observation that the substantial new duty for CAFCASS arising
from the Children and adoption Act 2006 had been "regarded
as 'cost neutral' by the Treasury" and no extra budgeting
provision had been made. He described this evaluation as "an
extraordinary example of the triumph of wishful thinking over
realistic assessment" noting that it must have been obvious
that the deployment of CAFCASS staff in these functions "was
bound to reduce (as it has reduced) the amount of time available
to individual officers for the purposes of reporting, giving advice
to the court and implementing contact between recalcitrant parties."
Our witnesses supplied evidence of significant delays in producing
court-ordered reports, inadequate reports and of children awaiting
appointments of guardians: 270 in London and 600 nationally at
the time this report was being prepared.
We note the Sir Mark's observation that: "thanks to the more
generous funding of CAFCASS Cymru" by the National Assembly
for Wales "that service has been largely immune from the
resource difficulties and consequent delays" which have affected
CAFCASS in England."
58. The National Association of Guardians Ad Litem
and Reporting Officers (NAGALRO), representing children's guardians,
family court advisors and independent social work practitioners
and consultants, and the National Youth Advocacy Service (NYAS),
an independent provider of advice and advocacy for children and
young people, both argued that the Legal Services Commission's
proposals completely ignored the needs and rights of children
and were likely to frustrate court-ordered arrangements by establishing
CAFCASS as a gatekeeper in sole charge of public support for guardians,
representatives and independent social work in family cases.
They argued that, by the removing the ability of the system to
meet the requirements of an order made by a Family Division judgeacting
in the best interests of a vulnerable child after careful consideration
of all factorsthe changes will limit judicial discretion.
This is particularly acute in cases where children are ordered
to be provided with separate representation. The National Association
for Guardians ad litem &c. quotes Lord Justice Wall as saying:
"If I, as a judge charged with the duty to resolve
an intractable contact dispute, take the view that the children
involved need separate representationand the Family Proceedings
Rules and s122 [of the Adoption and Children Act 2002] give me
the power to order than representation, then I will expect the
children to be provided with the service I think they need."
59. Our witnesses said that at a time when other
parts of Government are seeking to raise ambitions for children's
well-being, and strengthen the social care work force, it seems
inconsistent for the Legal Services Commission to be:
- cutting public funding to a
body of family law and family social care specialists developed
over the last 30 years;
- attacking both saddles of the "tandem"
model of children's representation, solicitor and social worker;
- removing, or downgrading, the available welfare
evidence, often gathered by independent social work, which judges
need before them to determine the best interests of the child.
60. The National Youth Advocacy Service (NYAS) is
the most significant independent provider of guardianship and
social work services dealing with about 160 of the most intractable
cases each year. The Service argued that the Commission's proposals
implied an increase in the workload of CAFCASS with which that
organisation will simply not be able to cope. NYAS also emphasised
the potential for alternative, genuinely independent provision
(needed if relationships between CAFCASS and parents break down)
to be lost and expressed the fear of the loss of experience and
expertise in NYAS as well as the substantial trust built up between
judiciary and the organisation over the years.
61. The National Youth Advocacy Service's submission
included a further example of judicial approval where Mr Justice
Ryder said, in a judgment, that:
"Fortunately, and despite the significant restrictions
placed on that body by the legal Services Commission, an agreement
was arrived at which permitted NYAS to represent the child. The
consequence, as is the common experience of the senior judiciary,
is that NYAS have negotiated a significant measure of agreement
between the parents.
At a time when the future of NYAS
hangs in the balance, being dependant on funding from Government
and/or the Legal Services Commission and where steps are being
taken to restrict NYAS' work this simple example ought to be made
known so that some reconsideration can be given to the ability
of agencies such as NYAS to provide needed services for families.
The agency of the State, namely CAFCASS, was unable to provide
what this family needed. This Court should not shrink from warning
of the consequences should it be faced with demise of NYAS. Without
that organisation's services this Court would have been involved
in seven days of contested, damaging and ultimately unnecessary
litigation at great cost, emotional and financial, to the State
and everyone involved."
Another senior judge in the Family Division put it
another way, in front of a recent family law conference, when
he said that, without NYAS, 'you might as well settle the more
difficult family law cases by trial by combat'.
62. The National Youth Advocacy Service reported
to us that, over the last two years, approximately two thirds
of its referrals were due to CAFCASS being unable or unwilling
to deal with complex cases (including breakdown of relations between
CAFCASS and families) and one third were court orders made in
response to administrative delays by that organisation. Judith
Timms, of The National Association of Guardians Ad Litem and Reporting
Officers, described the situation as: "part of a crude funding
war" between the Department of Children, Schools and Families,
the Legal Services Commission and the Ministry of Justice. She
went on that the Commission was focusing on respective formal
responsibilities and contrasted the Commission's vision of a clear
divide between "social work input" and "legal input"
with, for example, the National Youth Advocacy Service's "holistic"
services provided in a way "we thought the Government wanted,
a joined up policy in relation to children."
We note the analysis of the President of the Family Division that:
"Following the constitutional upheavals associated
with the abolition of the Lord Chancellor as head of the judiciary,
[CAFCASS] has become answerable to the DCSF and works within the
strategic objectives agreed by their sponsor department. The division
of responsibility, between the DCSF to whom [CAFCASS] are now
accountable, and the [Ministry of Justice], as the body responsible
for HM Courts Service and the support of the judiciary, is scarcely
an example of "joined up" government. It is in practice
a serious fault line because, although the functions of [CAFCASS]
(and hence their tasks and responsibilities) are dictated, and
may be increased, by the demands of the judges and the [Ministry
of Justice], the DCSF, which is the budget holder responsible
to finance those demands, has its attentions and priorities largely
63. The Minister of State for Children, Young People
and Families, Rt Hon Beverley Hughes MP, responded to us in March
that the Government fully appreciated the work of NYAS for vulnerable
children and young people but she said that she did not want to
comment and "pre-empt the consultation".
The Minister with direct responsibility, Baroness Morgan, wrote
that, while CAFCASS was responsible for providing guardians (and
was meeting its target for appointment within two days of referral
in 65 per cent. of cases), the courts sometimes chose to appoint
non-CAFCASS guardians under Family Proceedings Rules (including,
but not only, because of limited CAFCASS capacity). We asked about
the number of cases where the organisation had ceased to provide
a guardian and provision fell to NYAS, but the Minister informed
us that the information was not collected.
Baroness Morgan wrote that NYAS dealt with around 150 cases a
year; only a small proportion of the 1,206 guardianships dealt
with by CAFCASS in 2006-07.
64. The Legal
Services Commission, in oral evidence, denied that the issue of
paying for guardians and independent social work in 9.5 cases
was an "unseemly battle", or "argument over who
should be picking up the tab", between departments.
Sara Kovach-Clark, of the Commission, told us "we have to
give due regard to the financial pressures that are on this as
well and so it is important that we fund what we are statutorily
obliged to fund and that CAFCASS funds what they are statutorily
obliged to fund."
The Legal Services Commission
said it was confident that discussion between the Commission and
the three relevant departments "will provide a satisfactory
result for all parties." We urge the Commission and the Government
to remember that vulnerable children are the most important party
to those inter-departmental proceedings, and to sort the problem
out. We would like to share the Commission's confidence but we
can see no objective grounds for its optimism. We urge the Government
to monitor this situation, providing evidence of progress by the
time the House returns.
65. The way forward planned by the Government may
be indicated by the statement that: "CAFCASS already commissions
services from a range of providers, including NYAS, to help meet
the needs of families
and the consultation proposals envisage
that CAFCASS would continue to do so". However, the National
Youth Advisory Service itself would resist the suggestion that
it simply became a provider of services for CAFCASS because this
would compromise its independence, which is very important to
families whose relationship with CAFCASS has broken down.
66. We very
much welcomed supplementary evidence from the National Youth Advocacy
Service indicating that the Legal Services Commission was contemplating
funding some social work via legal aid as well as developing a
specialist children's contract for legal services in public law
86 Rule 9.5 of the Family Proceedings Rules 1991, as
amended, allows a judge to order a child to be made a party to
family law proceedings with separate representation-i.e. distinct
from that of either parent-in order for the child's 'voice' to
be heard and/or to enable the child's welfare, or best interests,
to be more effectively determined and pursued. Back
LSC consultation paper, paragraph 8.24 Back
Op. cit. Back
Appendix to this report Back
Q 7 and Ev 89 Back
Appendix to this report Back
Ev 80ff and 86ff and see QQ 18 and 21 Back
Ev 83 Back
Ev 80-1 and Q 18 Back
Ev 83 Back
Ev 102 Back
Q 18 Back
Appendix to this report Back
Ev 69 Back
Ev 78 Back
QQ 63 and 65-6 Back
Ev 79 Back
Ev 102 Back