Family Legal Aid Reform - Justice Committee Contents

5  Guardians and independent social work

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.[86] 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."[87]

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",[88] 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."[89] 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.[90] 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."[91]

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.[92] They argued that, by the removing the ability of the system to meet the requirements of an order made by a Family Division judge—acting in the best interests of a vulnerable child after careful consideration of all factors—the 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 representation—and 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."[93]

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; and
  • 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.[94]

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.[95]

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."[96]

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."[97] 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 directed elsewhere."[98]

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".[99] 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.[100] 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."[101] 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.[102]

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 cases.[103]

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

87   LSC consultation paper, paragraph 8.24 Back

88   Op. cit. Back

89   Appendix to this report Back

90   Q 7 and Ev 89 Back

91   Appendix to this report Back

92   Ev 80ff and 86ff and see QQ 18 and 21 Back

93   Ev 83 Back

94   Ev 80-1 and Q 18 Back

95   Ev 83 Back

96   Ev 102 Back

97   Q 18 Back

98   Appendix to this report Back

99   Ev 69 Back

100   Ev 78 Back

101   QQ 63 and 65-6 Back

102   Ev 79 Back

103   Ev 102 Back

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