Family Legal Aid Reform - Justice Committee Contents


Supplementary written evidence submitted by the National Youth Advocacy Service

  Further to our informal discussions with Select Committee members last month, I enclose a copy of NYAS' proposal in response to the difficulties we are experiencing in relation to changes in the specification and scope of publicly funded Family Law.

  I would be most grateful if you were able to give this your support as I know that the MOJ, DCSF and CAFCASS are due to meet to discuss matters shortly and I have asked that this be given serious consideration.

  I also enclose a Background paper which provides the context for this proposal.

MAINTAINING INDEPENDENT SOCIO-LEGAL SERVICES FOR CHILDREN IN PRIVATE LAW PROCEEDINGS

The National Youth Advocacy Service (NYAS)

  The National Youth Advocacy Service (NYAS) is a unique not-for-profit children's charity which supplies socio-legal advice, information, signposting and advocacy services to children and young people, and has provided a range of safety net services over the last 30 years. NYAS was the first Children's Charity to achieve a legal aid franchise 10 years ago and offers a complete range of social and legal advice and representation to children.

  NYAS has developed a range of specialist advocacy services, with more than 60 projects and 14 offices across England and Wales. Some 50,000 children use our broad range of services annually. These include a child-friendly Help Line accessible by direct chat or text with specialist services to children and young people in mental health settings or with disabilities, as well as for children and young people looked after in residential care, foster care and residential schools. With a joined up approach to advice giving for children, these services provide a ready gateway for children to access legal advice and information. NYAS provides participation and consultation with young people through the development and support of young people's groups, and Children in Care Councils. In Birmingham, NYAS provides a Signposting service which, with an online directory of the community services available, allows children and their families to seek advice and support for any issue they may have, and to obtain referral to appropriate voluntary or statutory services across all the tiers.

The Case for Change

  NYAS appears to be the victim of a "disconnect" between two government departments—DCSF and the MOJ—and their two non departmental public bodies—CAFCASS and the Legal Services Commission (LSC). Under the new proposals the LSC will fund legal work and the responsibility for all social work input in rule 9.5 private law cases will be passed to CAFCASS and removed from the LSC's funding scope from 2010. In the process, it is estimated that the numbers of children who have a voice in complex private disputes about their future residence and contact arrangements will be reduced by approximately a third. NYAS' highly valued services will fall through the resulting departmental funding gap in the same way as many thousands of the children they help, who have fallen through the gaps in statutory provision. The problem is that NYAS' rare combination of children's social work and legal services do not fit readily into the LSC new specification for family law services. What is needed is a joined up departmental funding route to support NYAS' established infrastructure of joined up specialist services for children. If no route can be found then the agency's expertise and capacity to help hundreds of children at risk in private law proceedings will be lost. In addition, NYAS' specialist teams of children's caseworkers—some of the most experienced in the country, will be broken up at the same time as the government is committing £58 million to recruit and train child care social workers.

  In their response to the Consultation on fees the Family Justice Council commented: "We take the opportunity to remind the LSC about what the FJC said in its Civil Bid Rounds response about the position of NYAS" (see para. 10 of that response):

    "The proposed new framework will also drive out organizations such as NYAS who have been committed to providing a service for children; it is not in their remit to provide a range of family legal services for adults. It provides specialist legal advice, support and services to vulnerable children. Its' services are of high quality and great value and, consequently, the LSC should maintain a system which allows excellent organizations such as NYAS to continue their work".[81]

  The LSC conceded in July 2007 that "The majority of respondents (to their Consultation on Separate Representation, 2006) felt that the President's Practice Direction was a 'robust enough framework' taking proper account of a range of critical factors in the child's life and the 'judiciary's discretion to order separate representation based upon particular facts of the case".[82] Yet the proposals contained in the two 2009 Consultations undermine the present use of rule 9.5 and make a targeted assault on NYAS' "tandem model" approach. The Judiciary are only too well aware of the problems. "It is proposed that from 2010 an already impossibly overstretched and underfunded CAFCASS will be required to accept all appointments under rule 9.5, even those cases in which a judge considers it to be plain that the allocation of the case to CAFCASS is inappropriate".[83]

  Inspection reports have consistently revealed CAFCASS' difficulties, and despite some improvements, their CEO, Antony Douglas, acknowledges "there is still a challenge to meet demand from the amount of court proceedings, mainly in private law (divorce proceedings) and recently there has been an increase in the amount of care proceedings being taken by local authorities to protect children at risk of harm, which also places pressure on CAFCASS".[84]

  NYAS' legal team specialise in the separate representation of children and the NYAS approach involves a "tandem model" with the social worker and solicitor working closely together. If the proposals put forward by the LSC in the "new Unified Contract" for Family Law, and their proposals for Family Legal Funding from 2010 are adopted, NYAS would no longer be able to deliver a national specialised socio-legal service for children.

  There are a small number of very high conflict cases such as those set out in the CAFCASS/NYAS protocol, and which comply with the criteria for separate representation of a child as set out in the President's Practice Direction.[85] For these cases it is either not possible or not advisable for CAFCASS to be appointed. They can only be resolved through the expertise of a skilled children's solicitor and independent social worker working "in tandem" to ensure that the rights and welfare of that particularly vulnerable child receive the careful assessment and separate representation that only full party status can give. It would be false economy to limit funding in these cases as they are amongst the most intractable and expensive in the system. Where the needs of the children are not satisfactorily addressed this vulnerable group go on to make long term demands on mental health, residential care, and/or youth justice services and budgets.

  It would be more costly if CAFCASS were to attempt to replace NYAS' services and it is likely that they would be less effective. Any such services would not be perceived by the service users to be independent. A commissioning relationship with CAFCASS would undermine NYAS' independence, and jeopardise NYAS' effectiveness with those families where the relationship with CAFCASS has broken down. It would reinforce the "power imbalances" which are inherent in the relationship between purchasers and providers and are described in the Government's Compact with the voluntary sector.[86] NYAS is not an independent social work agency and the supply of independent social workers to CAFCASS would not fit with our charitable purpose, per se.

  There is a strong case to support the retention and development of NYAS' joined up services. The combined work of the NYAS solicitor and social worker, and our excellent links with reliable experts in other disciplines, can unstick cases so that they progress after many years in the system and do not come back to court. This makes the service cost effective for the family justice system. It is also effective in improving outcomes for children. It is not unusual for NYAS to see children who have been involved in between 10 and 20 different sets of court proceedings during the course of their childhood.

  NYAS has had consistent support from all levels of the Judiciary, including the President of the Family Division. The Response of the Circuit Judges[87] to the LSC Consultation on Civil Bids Rounds for 2010 clearly demonstrates this:

    "NYAS has, since its inception, been regarded by all levels of judiciary who came across its workers, as an invaluable resource. NYAS has an excellent record of resolving cases of implacably hostile parents refusing contact to the non-resident parent, NYAS operates country-wide. Having one office is, in this instant case, a distinct advantage, due to having central organisation and administration, employing highly qualified workers, based in different locations and available to work countrywide".

THE PROPOSAL

  The proposal is for the MOJ/LSC and the DCSF/CAFCASS to establish a funding route from current budgets, as recommended by the Family Justice Council, to ensure the continuation of NYAS' independent services for the most vulnerable children embroiled in family law proceedings. This could be achieved through a joint agreement between the DCSF and the MOJ, to provide protected funding of the legal and social work input to the most complex children cases in private law. This would be in line with the Government's Funding and Procurement Code.[88] Cash limited and ring fenced money from the two departments could maintain NYAS as a small, independent, grant funded socio-legal agency for the protection and representation of children in rule 9.5 proceedings, and for those who need the services of a body that is independent of CAFCASS, using the same model as the Office of the Official Solicitor.

  A new model could take the form of a partnership between NYAS and CAFCASS with shared funding from the DCSF and the MOJ; this would allow for a cost-effective, coherent and creative response in a highly specialised area of work to protect some of the nation's most vulnerable children. Ring fenced, targeted funding would ensure that budgets were controlled, and the service outcome driven. The MOJ/LSC would take responsibility for an amount corresponding to current legal and non social work expert/disbursement costs and DCSF/CAFCASS would take responsibility for the social work costs. This would comply with the funding direction proposed in the LSC Consultation. The LSC would no longer incur social work costs. No additional costs would be incurred, and the LSC would effectively make a saving in their budget. Funding would be drawn from existing budgets with a protected fund established, to enable at least current levels of NYAS' activity to continue. The existing funding, including disbursement costs currently met by the LSC, should be transferred to the fund. This would remove NYAS' legal work from the limitations of the service specification criteria of the Unified contract and set out in the proposals for 2010, and would allow continuation of a service that meets the needs of a small but critically important group of vulnerable children.

  Under such an arrangement, DCSF/CAFCASS would not have to replicate NYAS' existing provision, and they would be spared the necessary development and management costs. Thus both departments would deliver effective services for children in private law proceedings with some efficiency savings.

  NYAS would be happy to be subject to the same independent Quality Assurance processes and monitoring as CAFCASS, which could include monitoring against the revised outcomes framework which recognises the crucial role of parents, carers and families.[89]

  The LSC strategy paper acknowledged that "Children are particularly at risk of harm from high conflict relationship breakdown" and promised that "Access to integrated specialist legal advice" for such children "will be a priority for the LSC over the next five years".[90] In addition, Government policy in response to the Laming Report is "to strengthen the social care workforce". It is important to ensure that NYAS' skilled specialist child care practitioners remain available to children—recognised for their important contribution as essential experts within that workforce. The recent DCSF Select Committee report highlighted the need for a renewed emphasis on Safeguarding and in her evidence, Baroness Morgan of Drefelin described her department's "longer term strategy bringing together experts from across the profession to create a comprehensive and joined up children's workforce highlighted in the Children's Plan",[91] This joined up approach should surely also be the aim of the LSC and should allow the DCSF and LSC to reach an agreement for shared funding for NYAS' socio-legal model, as two Government departments engaging with the Voluntary sector and both working in the best interest of children. NYAS is not seeking additional or new money, but as Lord Justice Wall said in his Cardiff speech, there is "an urgent need for funding to establish a 'joined up' approach".[92]

  The view of the judiciary is concisely expressed:[93]

    "NYAS is often invited to intervene when CAFCASS has failed, due to lack of resources or expertise. NYAS are asked by the judiciary to resolve longstanding problems as a result of which children invariably suffer significant harm, mostly emotional ... the demise of NYAS, whichever way it may be approached, flies in the face of logic. CAFCASS is stretched to its maximum capacity. NYAS has a record of excellence. Abolishing the latter would add to the already overstretched CAFCASS, detracting from available expertise without substituting it with anything viable.

  The child/young person will be ill served by this approach. This must not be allowed to happen."

Elena Fowler

Chief Executive, National Youth Advocacy Service

May 2009

BACKGROUND TO THE PROPOSAL FOR MAINTAINING INDEPENDENT SOCIO-LEGAL SERVICES FOR CHILDREN IN PRIVATE LAW PROCEEDINGS

The Aim of the Proposal

  NYAS' proposal would protect a comparatively small but particularly vulnerable group of children whose risk of physical and emotional harm is high, whilst also improving their longer-term outcomes. It is consistent with the wider Government safeguarding agenda in relation to children and young people and the LSC's stated objectives in terms of the future sustainability of legal aid, the protection of representation and advocacy services and access to justice for children.

  LSC have stated in their consultation document that "this is not about cuts: we expect to spend the same under the new scheme as we do currently".[94] What NYAS is asking for is not new money, but a collaborative funding mechanism for the current approximately £1.5 million which constitutes NYAS' gross income from the LSC to be set aside for children's specialist services, and administered through a grant or NYAS/CAFCASS service level agreement in line with the current NYAS/CAFCASS protocol. This would allow continuation of a service that meets the needs of a small but critically important group of vulnerable children.

The Role of NYAS

  NYAS has developed an effective infrastructure for the provision of legal services for children and young people and has demonstrated that, whilst recognising the statutory responsibilities of CAFCASS, in a minority of cases there is a need for an independent and alternative service to CAFCASS. This alternative service makes legal advice accessible to all the 50,000 children who contact NYAS annually. It is accessible by children and young people in need and looked after, both through the Help Line and web site and through direct referral from the courts. For those children caught up in Private Law proceedings, the service offers protection and independent separate representation in complex and entrenched cases within the criteria set out in the President's Practice Direction. The authority for the involvement of NYAS stems from a number of Court of Appeal decisions, including Re A[95] and Re D.[96]

  Our work is characterised by the provision of a specialised and responsive service. Our caseworkers are highly experienced and qualified child care social workers, and our solicitors have developed considerable specialist expertise. The team is skilled at communicating with children and are prepared to work with children and families at evenings or weekends if necessary. Some two thirds of referrals received by NYAS are due to the complexity of the case, including but not exclusively when there is a breakdown of the relationship with CAFCASS. Approximately one third of referrals received are complex cases subject to delay by CAFCASS. NYAS has recently had to limit the number of cases accepted where delay is the main reason for referral, as CAFCASS has a growing backlog of cases and there is a danger that these deflect us from our core purpose.

  NYAS and CAFCASS have an agreed protocol for working together.[97] It recognises that CAFCASS' ability to provide separate representation should always be considered first and it ensures discussion takes place between CAFCASS and NYAS with adherence to the Practice Direction and notification of the court. This is well established and works well at a local level across England and Wales.

  In January and February 2004 NYAS undertook a snapshot of cases in which NYAS had been involved.[98] The research showed that in 100% of cases, two or more of the factors referred to in the Practice Direction were present. The CAFCASS Annual Report 2005-06 stated that "A sample analysis (of 100 cases in which children had been represented under r 9.5, all of whom had been trapped in the revolving door of repeated proceeding) suggests the use of rule 9.5 is proving an effective measure in resolving disputes and supporting children in some of our most complex private law cases". CAFCASS' findings replicated the earlier findings by NYAS in their review of 95 rule 9.5 cases. None of the cases had returned to court at the time of the review.[99]

  Research by Douglas et al, commissioned by the DCA in 2006, also highlighted the fact that "the development of separate representation in private law proceedings has been prompted at least as much by concern that the welfare of the child is properly safeguarded and is not lost sight of underneath the parents own priorities and concerns."[100]

Policy Development in Practice

  The need for more private law representation for children has twice been debated and acknowledged by parliament. S64 Family Law Act 1996 and S122 Adoption and Children Act 2002 both extended the right to the tandem representation afforded by a children's panel solicitor and a children's guardian to children involved in s8 residence and contact proceedings. In introducing the government's amendments, which became sl22 Adoption and Children Act 2002, then minister for families, Rosie Winterton, told the House of Commons that the Government believed that "there is too stark a distinction between public law cases… and private law disputes between individuals". She said that the Government believed children in private law disputes "should have access to separate representation more frequently than they do at present".[101]

  LSC strategy paper in 2007 acknowledged that "Children are particularly at risk of harm from high conflict relationship breakdown" and promised that "Access to integrated specialist legal advice" for such children "will be a priority for the LSC over the next five years".[102]

  However, the Consultation paper, "Separate representation of Children,"[103] issued in 2006, stated that separate representation "is only relevant for a small proportion of children who are involved in private law proceedings arising from parental conflict." It proposed that a child should only be made a party to the proceedings "where there is a legal need to do so".[104] It also proposed that when a decision is made to make a child a party to the proceedings "CAFCASS should be the preferred choice of the court to act as the Children's Guardian.".[105]

  Those proposals were met with considerable criticism from those who responded to the consultation. Lord Justice Wall summed these up in his "Cardiff paper"[106] when he said: "It would, in my view, be a serious loss to the vulnerable children who need to be separately represented if access to NYAS' services were restricted in the manner which the Consultation Paper contemplates", and further: "I wish to make it as clear as I can that I would strongly deprecate any suggestion by the Legal Services Commission that it should not pay for the guardian in a case where a judge has appointed NYAS, and where the judge takes the view that the work of the guardian is of critical importance to the successful outcome of the case—as in A v A and in Tuesday's case in the Court of Appeal".

  The LSC conceded in July 2007 that "The majority of respondents ... felt that the President's Practice Direction was a "robust enough framework' taking proper account of a range of critical factors in the child's life" and the "judiciary's discretion to order separate representation based upon particular facts of the case"[107] The Government shelved the proposals; they said that "Alternative options are being developed with the DCSF, CAFCASS and LSC colleagues, which will, require further consultation".[108]

  The further consultation has emerged two years later, containing another attempt to limit the right of children to representation in private law proceedings within the two consultations issued in the joint names of the Ministry of Justice and the Legal Services Commission. The first, "Civil Bid Rounds for 2010 Contracts: A Consultation",[109] closed in January 2009 and the second, "Consultation on Family Legal Aid Funding for 2010" closed on 3 April 2009.

  The "foreword" to the first of those consultations states that the proposals "enable us to procure more client-focused services through securing easier access to face-to-face advice,'' Although it is stated that the LSC Family Strategy "identifies priority areas of funding as services for children"[110] the proposals directly discriminate against them. They will have a devastating effect on the ability of children to access legal advice, as well as on NYAS' ability to continue to represent them. Particularly problematic are the requirements for access set out in Section 5 of that consultation: Providers must "have a presence in all the procurement areas that they bid to work in." All clients would be expected to receive face to face services only from designated registered local offices, within the specified procurement areas.[111] Outreach could only be negotiated with "Relationship managers" in that area once contracts have been awarded and "New Matter Starts will be allocated to each access point in line with the level of demand indicated by data on historic location."[112] Many of these criteria are included in the new Unified Contract, already in place, which could result in NYAS being found to be "in breach of contract" and unable to go forward.

  The second consultation paper[113] resumes the direct attack started in the 2006 paper. This consultation paper subsumes within its proposals for the transformation of funding arrangements for Family Law, proposals to limit the appointment of and funding for Guardians in rule 9.5 cases. It says that "the exclusive handling of [rule 9.5] cases by or through CAFCASS would ensure a consistent, quality assured process subject to appropriate controls and Inspection, achieving best value for money".[114] This is a repetition of the proposals which were roundly rejected when they were put forward by the Government in 2006. The LSC goes further this time and proposes "to remove all independent social work expertise from scope in Rule 9.5 cases" [115]It also proposes that the funding of solicitors to act as guardians in rule 9.5 cases should be removed from the scope of LSC funding.

  Children and young people are the over arching responsibility of every government department in relation to the wider safeguarding agenda as set out in "Every Child Matters". The Ministry of Justice has recognised their responsibility by acknowledging the importance of making "a reality of children's rights by setting an ambition of well-being for every child, described in terms of the five outcomes, and by setting an expectation that services should work together to promote this."[116]

  NYAS proposal complies with the first of Lord Laming's most recent recommendations:—"First and foremost, the Secretaries of State for Health, Justice, the Home Office and Children, Schools and Families must collaborate in the setting of explicit strategic priorities for the protection of children and young people for each of the key frontline services and ensure sufficient resources are in place to deliver these priorities".[117]

  In addition, Government policy in response to the Laming Report is "to strengthen the social care workforce", and it is important to ensure that the skilled specialist child care practitioners who act as NYAS Guardians continue to be available to children and are recognised for their important contribution as essential experts within that workforce.

  There are a small number of very high conflict cases such as those set out in the CAFCASS/NYAS protocol, in which it is either not possible or not advisable for CAFCASS to be appointed and which can only be resolved through the expertise of a skilled children's solicitor and independent social worker working "in tandem" to ensure that the rights and welfare of that particularly vulnerable child receive the careful assessment and separate representation that only full party status can give.

  It would be false economy to limit funding in these cases as they are amongst the most intractable and expensive in the system.

The need for a "joined up" policy that puts children first

  Despite the consistent policy recognition of the vulnerability of children caught up in private law proceedings, and a stated commitment to legal advice for children, there has been a complete disregard for this position in the current proposals for change. The LSC proposal to remove social work expertise from their funding scope will have a disproportionate impact on the welfare of children and young people and takes no account of their needs as a separate stakeholder group. It also reflects a dangerous inconsistent disconnect between departmental and organisational policies which risks leaving children tragically vulnerable.

  There is mounting evidence that children cannot get the advice they need from the civil justice system to claim their rights. Research by Youth Access with the Legal Services Research Centre reveals that the majority of children and young people who have complex problems are far more likely to have tried and failed to get advice than adults.[118] Many experience health problems or become homeless as a result of their unmet needs.

  There are also currently 200,000 children who live in households where there is a known high-risk case of domestic abuse and violence.[119] As HIMICA highlighted in its inspection of Private Law front line service in CAFCASS in 2006, the children involved may also be children in need or at risk of significant harm.[120]

  In September 2008 the UN Committee on the Rights of the Child formally examined the UK Government's implementation of the UN Convention on the Rights of the Child (UNCRC). It followed up the examination with 124 recommendations showing where the UK government is falling short of its obligations under the widely ratified international human rights treaty for children.

  The LSC proposals are not convention compliant in that they do not afford children and young people in private law proceedings, the sustainable access to justice required by international conventions and domestic legislation.

  Sl(3)(a) of the Children Act 1989 establishes the basic principle that when considering any application from a child the court must have regard to "the ascertainable wishes and feelings of the child concerned" (considered in the light of their age and understanding). The United Nations Convention on the Rights of the Child (UNCRC) (Articlel2 (2)) requires that any child affected by judicial and administrative proceedings have "the right to express views freely", and "the opportunity to be heard".

  The requirements of the Human Rights Act 1998 which incorporated the European Convention on Human Rights into our domestic legislation gives children and young people equal rights to be represented in proceedings which affect them as all other parties. (Article 6 ECHR) It also includes a requirement for proceedings to be within a 'reasonable time'. Delay by CAFCASS in appointing a suitable Guardian for children in both public and private law proceedings is a major concern which will be exacerbated if no arrangement is made for the continuation of NYAS services.

  Rule 9.5 FPR 1991 remains the only route to the separate representation needed to remove children from the revolving doors of repeated proceedings and the LSC are now seeking to impose restrictions on it. There is substantial case law which supports the benefits of rule 9.5.[121] The LSC proposals directly undermine the discretion of the judiciary to decide which children need representation in their courts according to the evidence put before it and as set out in the President of the Family Division's practice Direction of 5 April 2004. They put the responsibility for the decision entirely onto CAFCASS. This is an extremely dangerous and particularly ill-advised proposal in which there is no pretence that the welfare of the child will be the paramount consideration. The LSC Consultation document states quite clearly that: "The requirement of consent allows CAFCASS to gatekeep the cases which it takes on and deal with entirely in house and also to ensure that the caseload reflects its High Court caseworker headcount and resources."[122]

  The proposal ignores the President's Direction which specifically allows for the appointment of NYAS or "other proper person" to act as Guardian ad Litem for the child under the provisions of rule 9.5 Family Proceedings Rules 1991. As Lord Justice Wall has said: "I have to say quite bluntly that if I, as a judge charged with the duty to resolve an intractable contact dispute, lake the view that the children involved need separate representation and the Family Proceedings Rules and s122 give me the power to order that representation, then I will expect the children to be provided with the service I think they need.".[123]

  The proposals, together with the Unified Contract specification, will dismantle NYAS' skilled and experienced specialist provision for children and young people which young people can currently access from anywhere in England and Wales, regardless of whether any other child in that area has previously requested such help. They will prevent continuation of existing integrated services by restricting provision to geographical procurement areas and requiring young clients, many of whom do not have parental or adult support, to attend at suppliers' offices.

  Taken together the proposals, which are the subject of both these consultations, constitute a consistent undermining of the present use of rule 9.5 and a specific and targeted assault on NYAS and our "tandem model" approach. It is NYAS' view and the view of some members of the judiciary, that the proposals amount to a direct attack on the ability of judges to exercise their discretion in the appointment of guardians and "therefore amount to an attack on judicial independence".[124]

  It is disappointing that, as a significant contributor to work with children caught up in the most entrenched cases, data held by CAFCASS and the LSC has not been shared with NYAS. It is NYAS' experience that the figures relied upon by the LSC are unreliable. Judge Clifford Bellamy set this out clearly in his recent talk to the NAGALRO conference: "I want to begin my attempt to make good those views by reference to some statistics. I use the word 'attempt' advisedly since comprehensive, reliable statistical information is not available. Let me take the year 2007-08. If you ask the Ministry of Justice how many private law applications were made during that period, it cannot give you an accurate figure. ……If you then go on to ask the Ministry of Justice how many orders were made under rule 9.5 in 2007; it will not even be able to hazard a guess. It does not record that information on it's IT system, 'FamilyMan'. … So, if we cannot get statistical information about the use of rule 9.5 from the Ministry of Justice, where else might we try to find that information? The Legal Services Commission funds all of these ride 9.5 appointments, so surely it can give us some statistics? In a recent letter from the Legal Services Commission I was told that 'Ride 9.5 cases are not specifically identified in our systems".[125]

  Alongside the LSC proposals which would limit NYAS' ability to provide specialist services for children, considerable change has already been implemented in relation to risk assessments and contact activity which are now no longer within the funding scope of the LSC. The responsibility for these services now rests exclusively with CAFCASS. The impact of these changes will only be truly felt in the coming year, and there are clear indications that many well established Supervised Contact Centres will have to close and many children will not be able to access supervised contact with their parent. The withdrawal of LSC funding of Contact Centres from lst April 2009, is already causing more children involved in private law proceedings to be at risk, with considerable additional delays in contact provision. Yet more children will lose contact with their non-resident parent.

  The proposal to limit rule 9.5 representation to CAFCASS will impose considerable additional stresses on a service which is already fully stretched in dealing with a complex raft of new statutory responsibilities introduced by the Private Law programme, the Adoption and Children Act 2006.

  Inspection Reports of CAFCASS have consistently highlighted the deficiencies of that service, and despite some improvements their CEO, Anthony Douglas, acknowledges "there is still a challenge to meet demand from the amoimt of cowl proceedings, mainly in private law (divorce proceedings) and recently there has been an increase in the amount of care proceedings being taken by local authorities to protect children at risk of harm, which also places pressure on CAFCASS".[126]

  Inspection reports have found CAFCASS services to have "unacceptable variations in the quality of assessments, case plans, recording and court reporting," with "a lack of focus on children and their welfare."[127] A recent report states "assessment intervention and direct work with children are inadequate…reports and recommendations to court are inadequate…the contribution to improving outcomes for children is inadequate overall….value for money is inadequate".[128] Antony Douglas has acknowledged the difficulties and recognises it will take time to put right, stating his aim for private law services is for them "to be graded as adequate."[129] In the light of CAFCASS poor performance and mediocre aims, it is difficult to justify giving them sole responsibility for private law services whilst removing the well established and effective services currently delivered by NYAS.

  It is clear that NYAS services do not fit readily into the new LSC specification for family law services and the LSC do not value NYAS work under the new contract. A shared approach to Casework with the solicitor and social worker working in tandem is at the heart of our socio—legal model of separate representation. NYAS is not an independent social work agency, and our service would be seriously detracted from if we were only to provide only half of it. If CAFCASS were to attempt to replace NYAS services the development of those services would be costly and it is likely that they would be less effective. To replicate NYAS services in-house, CAFCASS would have to overcome the difficulties they are already experiencing within their current responsibilities and reflected in the numerous inspection reports. If they attempt to commission similar services they would be likely to encounter the same difficulties revealed in their recent commissioning of contact activities and section seven reporting and there would be a serious lack of available specialist legal and social work expertise. Any such services would not be perceived by the service users to be independent.

  There is a strong case to support the retention and development of a niche specialist service to children and young people. High quality interdisciplinary services of consultation, casework and representation specifically developed to be both visible and accessible to children and young people such as those provided by NYAS are a rare commodity. (See further the NSPCC Policy recommendations arising from the findings of the Your Shout Too! research).[130]

  The Judiciary are only too well aware of the problems: "It is proposed that from 2010 an already impossibly overstretched and under funded CAFCASS will be required to accept all appointments under rule 9.5, even those cases in which a judge considers it to be plain that the allocation of the case to CAFCASS is inappropriate".[131]

  Two years ago Lord Justice Wilson observed: "What we have seen since 2002 has been governmental retreat, for no child centred reason, from its stance at that time; and by contrast, a growing perception by the court that children in private law proceedings require the services of a guardian far more frequently and thus its increasing use of the power in rule 9.5 to appoint one for them".[132]

  It would be more cost effective to maintain NYAS' well established specialist provision. It has the trust of the Judiciary and of families who have lost confidence in CAFCASS, and this would comply with government policy in other areas of child care service provision where the involvement of the third sector is positively encouraged.

  In 2007 Ed Milliband described the government's vision for coherent delivery of government policy through the Compact, creating "an environment for a thriving third sector". He set out the need for "an alliance for cultural change", which was based on "partnership not rivalry" between the statutory and voluntary sector, and which provides funding opportunities allowing the third sector to have an "influence on decision making." There is an opportunity now to contribute to that cultural change.[133]

  Lord Justice Wall called for a coherent approach to the funding difficulties in 2006, and the position has not improved. "I agree with NYAS that rather than reducing the number of ride 9.5 appointments by changing the court rules, and in so doing depriving children of legal representation and access to justice in processes that shape their future, there is an urgent need for funding to establish a 'joined up' approach."[134] NYAS' proposal seeks to address that need.

  In their response to the Consultation on fees the Family Justice Council commented: "We take the opportunity to remind the LSC about what the FJC said in its Civil Bid Rounds response about the position of NYAS" (see para 10 of that response): "The proposed new framework will also drive out organisations such as NYAS who have been committed to providing a service for children; it is not in their remit to provide a range of family legal services for adults. It provides specialist legal advice, support and services to vulnerable children. Its services are of high quality and great value and, consequently, the LSC should maintain a system which allows excellent organisations such as NYAS to continue their work".[135]

  It is widely recognised that there is a need to reduce delay in Private Law proceedings and to achieve better cooperation between all parties involved. There is an over-riding need to simplify the representation and protection of children in more complex private law cases whilst also ensuring that the costs are kept within bounds with savings where possible. A partnership between CAFCASS and NYAS would allow an effective process for those complex cases requiring an independent service, with continuity and responsiveness for the courts. It would also allow a partnership approach to the measured development of a Private Law Outline in line with the Public Law Outline. The aim being to achieve higher quality applications to court with shorter timescales for court processes with core assessments carried out and care plans prepared and developed with children and families. A partnership could facilitate research into complexity and predictors for effective intervention in private law proceedings, so as to develop an effective preventative strategy which addresses the needs of children caught up in long-standing and acrimonious parental disputes.

  It is notoriously difficult to achieve agreement for the sharing of budgets between departments. Nobody will easily relinquish funds. This proposal offers an opportunity for the DCSF and the MOJ to lead the way in creating a new culture of cooperation, demonstrating the effectiveness of multi-disciplinary, multi-agency and joint departmental working for the benefit and protection of the most vulnerable children.

Elena Fowler

Chief Executive

National Youth Advocacy Service

May 2009

Annex 1

PRESIDENT OF THE FAMILY DIVISION'S PRACTICE DIRECTION. 5 APRIL 2004

REPRESENTATION OF CHILDREN IN FAMILY PROCEEDINGS PURSUANT TO FAMILY PROCEEDINGS RULES 1991 (RULE 9.5)(2004)

  The court may appoint a GAL to take part in the proceedings in accordance with rule 9.5 of the Family Proceedings Rules 1991[136] when it "appears to the court that it is in the best interests of any child." The President's Practice Direction offers" Guidance" as to circumstances which may justify the making of an order and recognises that such an appointment would be made only in unusual cases and after consideration of alternatives. It establishes eight key factors which would support such an appointment:

    1. where a child has a standpoint or interest inconsistent or incapable of being represented by any of the other adult parties;

    2. where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is an irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;

    3. where the views of the child can not adequately be met by a report to the court;

    4. where an older child is opposing a proposed course of action;

    5. where there are complex medical or mental health issues to be determined or where there are other unusually complex issues that necessitate separate representation of the child;

    6. where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;

    7. where there are serious allegations of physical, sexual or other abuse to the child, or there are allegations of domestic violence not capable of being resolved with the help of the CAFCASS Officer; and

    8. where the proceedings concern more than one child and the welfare of the child is in conflict or one child is in a particularly disadvantaged position.

  Rule 9.5 allows forjudicial discretion in choice of guardian. It establishes at s (1)[137] that the court may appoint as GAL for the child either:

    — a CAFCASS Officer;

    — the Official Solicitor (if they consent); and

    — some other proper person (if they consent).

  Consideration will initially be given to appointing an officer from CAFCASS who have no discretion about accepting the appointment. However it is recognised that CAFCASS may not always be the most appropriate appointment, notably where there is a particular concern to avoid delay, s (4) or where the relationship with CAFCASS has broken down. A typical example of this is demonstrated in Re C[138] when the court of appeal appointed NYAS because the child had lost faith in the CAFCASS Officer.

Annex 2

PROTOCOL BETWEEN THE NATIONAL YOUTH ADVOCACY SERVICE AND THE CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE (CAFCASS)

  This protocol aims to clarify the roles of both agencies representing children in private law proceedings in order to meet, in the best possible way, the needs of all children and families.

Shared Commitments

    — Compliance with article 12 of the United Nations Convention on the Rights of the Child.

    — Improved Services for Children in family proceedings.

    — A coordinated response to changing practice and regional needs.

National Youth Advocacy Service

  1.  NYAS is a UK charity offering socio-legal information, advice and legal representation to children and young people up to the age of 25. NYAS has developed a strong identity as a leading Children's Rights organisation with provision of advocacy services. NYAS has advocates across England and Wales, supported by a Legal Team and a free phone helpline and advice service for children and young people. NYAS also provides separate representation for children and young people where the court considers that such representation is necessary under Rule 9.5 of the Family Proceedings Rules and in line with the Practice Direction of The President of the Family Division of April 2004.[139]

  2.  NYAS is committed to Article 12 of the UN Convention of the Rights of the Child. The object of NYAS representing young people, is wherever possible to protect the young person from the damaging effects of being caught up in legal proceedings. It is a common misconception that children as parties to the proceedings would always give instructions, although they may do so with leave of the court or if they are competent to instruct a solicitor directly. A child who is capable of forming his or her own views has the right to express those views in the proceedings with the views being given due weight in accordance with the age and maturity of the child. The child's true wishes and feelings should be put before the court as part of an holistic approach in terms of assessing the whole background and dynamics of the situation. The child should have the opportunity to have their situation represented separately from that of any of the adults.

  3.  The suitability of NYAS to act as guardian in appropriate cases was approved by Dame Elizabeth Butler-Sloss in the case of Re: A[140] (Separate Representation). There are a number of accepted situations in which separate representation of children in private law proceedings is either appropriate or acceptable and NYAS has also been involved in the recent cases A & A (Shared Residence)[141] and Re S (Uncooperative Mother)[142]

  4.  It is the policy of NYAS to appoint a caseworker who is an independent social worker and usually a children's guardian in the public law sense. The lawyer and caseworker work in tandem to provide representation for children and young people.

CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE (CAFCASS)

  5.  CAFCASS is a Non-Departmental Public Body. The service was established to combine the functions previously carried out by the Family Court Welfare Service provided by the Probation Service, the Children's Branch of the Official Solicitor's Department and the GALRO Service provided by local authorities. Its function is to safeguard the interests of children who are the subject of family proceedings. Social workers employed by CAFCASS are appointed as Family Court Advisers (FCAs) and carry out a number of roles according to the nature of the proceedings in which the child is involved.

  CAFCASS duties are to :

    — Safeguard and promote the welfare of the child.

    — Give advice to the court about any applications made to it in such proceedings.

    — Make provision for children to be represented in such proceedings.

    — Provide information, advice and support for children and their families.[143]

SAFEGUARDING AND PROMOTING THE INTERESTS OF CHILDREN

  6.  CAFCASS' responsibility is to safeguard and promote the interests of individual children who are the subject of family proceedings by providing independent social work advice to the court. In addition to its general duties it meets these responsibilities in some private law Children Act cases where an officer of CAFCASS accepts appointment as guardian under r9.5 of the Family Proceedings Rules 1991. In these cases the child will always have the benefit of legal representation and the FCA acting as guardian will instruct the solicitor.

  7.  Certain specialist High Court appointments for children are handled by the CAFCASS High Court Team based at National Office in London. They are responsible for medical treatment cases and cases with particularly complex features.

CHILDREN MADE A PARTY IN PRIVATE LAW PROCEEDINGS

  8.  Rule 9.5 of the Family Proceedings Rules 1991 states:

    (1) "…if in any family proceedings it appears to the court that it is in the best interests of any child to be made a party to the proceedings, the court may appoint:

(a)an officer of the service

(b)(if he consents) the Official Solicitor;[144] or

(c)(if he consents) some other proper person,

    to be the guardian ad litem of the child with authority to take part in the proceedings on the child's behalf."

  9.  The President's Practice Direction makes it clear that the child should only be made a party in a minority of cases featuring issues of significant difficulty. Such decisions are only made by a Circuit Judge, High Court Judge or District Judge in the Principal Registry of the Family Division (unless there are exceptional circumstances when a District Judge can make an order).

  10.  CAFCASS should be approached first to provide a guardian. The provision of a guardian when requested by the court is a significant and core task for CAFCASS and CAFCASS has a duty to appoint a guardian and cannot refuse appointment. Guidance has been issued to clarify that where a judge has decided that an appointment under rule 9.5 is necessary that Service Managers must prioritise the allocation of the case.

NATIONAL YOUTH ADVOCACY SERVICE AND CAFCASS WORKING TOGETHER

  11.  The National Youth Advocacy Service often provided a guardian in private law proceedings before the inception of CAFCASS when there was limited provision for guardians to be appointed. NYAS has continued to provide such a service particularly where judges have previous experience of their effective work in this area. This is part of NYAS' broader commitment to provide information and advice to children and young people.

  12.  Since 2001 when CAFCASS was created to provide a service in both public and private law proceedings there has been a considerable growth in rule 9.5 appointments undertaken by CAFCASS. As clarified in the President's Direction it is recognised that in many cases the child will benefit from representation by a guardian who has already met them in their capacity as children and family reporter in the case.

  When NYAS may be appointed guardian:

  13.  The Practice Direction of April 2004 states;

    "5. When a child is made a party and a guardian is to be appointed:

5.1Consideration should first be given to appointing an officer of CAFCASS as guardian

5.2If CAFCASS is unable to provide a guardian without delay, or if for some other reason the appointment of a CAFCASS officer is not appropriate, FPR rule 9.5(1) makes further provision for the appointment of a guardian"

  14.  CAFCASS should be approached first and will usually provide a guardian. However, NYAS may, for example, be asked by the court to provide a guardian in any matter (likely to be long standing) where, despite the best efforts of CAFCASS staff, one or more members of the family can no longer work with the organisation.

General principles

  15.  Both agencies are committed to effective communication in the best interests of the child in accordance with the law. The normal points of contact should be the CAFCASS service manager and the nominated NYAS lawyer. If any case moves between the two agencies it is particularly important to pass on information which may assist the work with the child and family, eg aspects of risk management, conflict of interest issues and any particular needs of the child. If NYAS is invited to provide r9.5 representation where CAFCASS has not been approached, NYAS will discuss the matter with CAFCASS and will be responsible for notifying the court in the first instance.

  16.  CAFCASS and NYAS will work together to advise the court whenever there appears to be good reason for a guardian not to be appointed eg when there is an alternative preferable route such as a section 37 report from the local authority.

  This Protocol will be reviewed in 12 months' time.

22 December 2005





































































81   Family Legal Aid Funding from 2010. A Consultation. Representation, Advocacy and Experts fees. Response of the Family Justice Council. Para 59. April 2009. Back

82   Separate Representation of Children-Summary of Responses to a Consultation Paper-Code No CP(R)20/06, published 26 July 2007. Back

83   His Honour Judge Clifford Bellamy. Op Cit. Back

84   CAFCASS Ofsted S1 report press release 7 January 2009. Back

85   Representation of Children in Family Proceedings Pursuant to Family Proceedings Rules 1991 Rule 9.5)(2004) 1 FLR1188 Back

86   www.CabinetOfTice.gov.uk. The Compact: An alliance for cultural change. Ed Milliband. 11.04.07. Back

87   Response of the Circuit Judges of the Principal Registry of the Family Division ("PRFD") and Gee Street to the Legal Services Commission Consultation on Civil Bids Rounds for 2010 contract. Back

88   Compact.Working Together, Better Together. Funding and Procurement Code. 2005. www.thecompact.ora.uk Back

89   Every Child Matters. Change for children. Revised outcomes framework. 03.04.08. DCSF. Back

90   Making Legal Rights a Reality for Children and Families-The Legal Services Commission's Strategy for Family Legal Aid, Volume 1, Para 1.8. Back

91   House of Commons Children, Schools and Families Committee. Vol 2. 09.03.09. Back

92   Whattaya Mean-'Quo Vadis?": Thoughts and Aspirations for the Future of Family Justice. (A Lecture In Honour of Professor Mervyn Murch, Delivered by Lord Justice Nicholas Wall at The University of Cardiff on 30 November 2006). Back

93   Response of the Circuit Judges of the Principal Registry of the Family Division ("PRFD") and Gee Street to the Legal Services Commission Consultation on Civil Bids Rounds for 2010 contract. Back

94   Family Funding from 2010.A consultation document. Foreword. p2. December 2008.LSC.MOJ. Back

95   Op cit. Back

96   (Intractable Contact Dispute; Publicity)(2004)(2004)EWHC 727 (Fam). Back

97   Between NYAS and CAFCASS (2006) Family Law 243. Back

98   Rule 9.5. Separate Representation and NYAS. Family Law Jan 2005. (35) pp 49-52.Fowler E and Stewart S. Family Law 35 (49)Back

99   Ibid. Back

100   Research into the Operation of r 9.5 of the Family Proceedings Rules 1991. Final Report to the Department of Constitutional Affairs. Douglas G, Murch M, Miles C and Scanlon L. 2006. Back

101   Hansard. 04.11.2002, col 108. Back

102   Making Legal Rights a Reality for Children and Families-The Legal Services Commission's Strategy for Family Legal Aid', Volume 1, Para 1.8. Back

103   Separate Representation of Children', Consultation Paper CP/20/06 . DCA 01.09.2006. Back

104   ibid, p 21. Back

105   ibid, p 25. Back

106   "Whattaya Mean-'Quo Vadis?": Thoughts and Aspirations For The Future Of Family Justice._(A Lecture In Honour Of Professor Mervyn Murch, Delivered By Lord Justice Nicholas Wall At The University Of Cardiff On 30 November 2006). Back

107   "Separate Representation of Children-Summary of Responses to a Consultation Paper-Code No CP(R)20/06, published 26 July 2007. Back

108   "Separate Representation of Children-Summary of Responses to a Consultation Paper", CP (R) 20/06. Department for Constitutional Affairs. 26 July 2007, p 38. Back

109   Civil Bid Rounds for 2010 Contracts: A Consultation1 LSC MOJ 01.09. Back

110   Ibid. Para 3.9. Back

111   Ibid. Para 5.32. Back

112   Ibid. Para 5.21. Back

113   'Family Legal Aid funding from 2010: A Consultation', December 2008. LSC MOJ. Back

114   ibid, Para 8.21. Back

115   ibid, Para 8.23. Back

116   "Rights and Responsibilities: developing our constitutional framework" Ministry of Justice. March 2009. Cm 7577 para 3.71. Back

117   The Protection of Children in England. A Progress Report. Lord Laming. P4. The Stationery Office. 12.03.09. Back

118   Balmer N J, Tarn T, Pleasence P (2007). Young People and Civil Justice: Findings from the 2004 English and Welsh civil and social justice survey. Youth Access. Back

119   Co-ordinated Action against Domestic Abuse based on their work to date on Multi Agency Risk Assessment Conferences. Back

120   Her Majesty's Inspectorate of Court Administration (HMICA) August 2006. Private law front line practice in CAFCASS. Inspection Report. London. HMICA. Back

121   See discussion of cases set out in HHH Clifford Bellamy's paper to NAGALRO conference Oxford 16 March 2009. "Representation and Participation of Children and Young People in High Conflict Contact Cases". Back

122   Family Funding from 2010 Consultation document ibid, para 8.27. Back

123   Lord Justice Wall. Making Contact Work. 15 February 2003. Back

124   His Honour Judge Clifford Bellamy "Representation And Participation Of Children And Young People In High Conflict Contact Cases" NAGALRO Conference 2009. Back

125   "Representation and Participation of Children and Young People in High Conflict Contact Cases" Oxford. 16.03.09. Back

126   CAFCASS Ofsted S1 report press release 7 January 2009. Back

127   Community Care 17.02.09. Back

128   HMI:C5001.16.02.09.Ofsted. Back

129   Community Care Op cit. Back

130   Your Shout Too! A survey of the views of children and young people involved in court proceedings when their parents divorce or separate. Judith E Timms, Sue Bailey and June Thoburn, NSPCC 2007 P 71. Back

131   His Honour Judge Clifford Bellamy. Op Cit. Back

132   "The Ears of the Child in Family Proceedings"-The Hershman/Levy Memorial Lecture, 28 June 2007. Back

133   www.Cabinet Offlce.gov.uk. The Compact: An alliance for cultural change. Ed Milliband. 11.04.07. Back

134   Op Cit. Back

135   Family Legal Aid Funding from 2010. A Consultation. Representation, Advocacy and Experts fees. Response of the Family Justice Council. Para 59. April 2009. Back

136   Representation of Children in Family Proceedings Pursuant to Family Proceedings Rules 1991 Rule 9.5)(2004)1 FLR1188. Back

137   Op cit. Back

138   Re C (2005) EWCA Civ 300. Back

139   [2004] 1 FLR1188. Back

140   [2001] 1 FLR715. Back

141   [2004] EWHC 142 Fam. Back

142   [2004] EWCA Civ 597. Back

143   Criminal Justice and Court Services Act 2000, Section 12. Back

144   For the Official Solicitor's functions in family cases see Practice Note dated 2 April 2001 [2001] 2 FLR 155. He acts as guardian ad litem of minors who are not subject of the proceedings such as respondent minor parents and child applicants. Back


 
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