Examination of Witnesses (Question Numbers
96-99)
Witnesses: Rt. Hon
Sir Nicholas Wall, President, Family Division, and Head of
Family Justice, and Sir Mark Hedley, High Court Judge (Family
Division) gave evidence.
Tuesday 12 October 2010
Q96 Chair: I welcome
you both, Sir Nicholas and Sir Mark, and thank you very much for
attending our hearing this morning. I know you felt some reluctance
to do so, but, from our point of view, having had a session with
both Cafcass themselves and their sponsor Department, the Department
for Education, we simply thought it would be helpful, in coming
to some helpful conclusions, if we heard a little from you as
the customer of Cafcass. We are immensely grateful for you to
agreeing to attend.
Can I also say thank you to you, Sir Nicholas, for
sending the letter, particularly the one of 7 October, which
gives us a basis on which to take the questioning? To start,
in that letter you remind us quite properly that care proceedings
are instituted by local authorities. You say there are variations
in the performance of local authorities, which impact on whether
backlogs have been eliminated. Would it be possible for you to
expand on that observation? Why is the performance different
in local authorities? What are you actually referring to? Is
it that different standards are applied in terms of where they
decide to take care proceedings? Do the children's department,
the social workers, work in a different way? How does that impact
on the contribution that Cafcass then has to make to your consideration
of individual cases in the courts?
Sir Nicholas Wall:
Under the public law protocol, you will appreciate that the local
authority is obliged to undertake preaction work with the
family. There is a preprotocol procedure, which means that
the local authority should not only work with but assess the family.
One of the problems has been that there have been differences
in local authority assessments. If a local authority does its
work efficiently and well, one tends to find--I am sure Mark would
agree--that the guardian accepts the work done by the local authority,
and the case can proceed relatively smoothly. If, on the other
hand, the local authority hasn't done a full assessment, the judge
who is charged with the duty of not only finding the threshold
criteria satisfied but also deciding whether or not it is in the
best interests of the child--whether the care plan is appropriate--can't
make a care order and can't proceed. Therefore, there is a delay
while sometimes a judge feels that he or she has to have a second
assessment, or alternatively Cafcass feels it has to investigate
the care work that has been done by the local authority in much
greater detail. There is a consequential delay. One does tend
to find that some local authorities that do excellent preprotocol
work produce excellent assessments and cases proceed smoothly;
if they do not, there is a delay.
Q97 Chair: Would you
like to add anything particularly? We know London is particularly
different.
Sir Mark Hedley:
Different authorities have radically different demands made of
them, depending on the social setting in which they are operating.
You would expect one of the Royal Boroughs to produce something
rather more polished than, say, Southwark or Lambeth, which operate
under huge pressures in terms of the demands made of them. That
is not to say that they do it badly, but there are radically different
demands made on different authorities. I know from my experience
of being liaison judge in Wales, as well, that you have problems
in Blaenau Gwent, for example, which you most certainly don't
have in, say, Pembrokeshire, simply because the demands are quite
different. We have to live with the fact that there are very
different demands. Different social services have recruitment
and retention problems, which others do not have. They are often
linked to the kinds of demands that are made. Those kinds of
issues bubbling around in the background have an obvious impact
on what local authorities can and cannot achieve.
Q98 Chair: In effect,
if all local authorities performed at the level of the best, even
having regard to the different demands, the ability of Cafcass
to respond to the needs of the court would be far easier.
Sir Nicholas Wall:
Yes, I think that is right. One of the things I have said to
Government in correspondence is anything the Government can do
to improve the lot of the social worker, and to raise the profile
of the social work profession, would be greatly welcomed by the
judiciary, because we are dependent on social workers for the
competence of the work they do. If the work is not well done
or if the work, because of the pressures that Mark has indicated,
is poorly done, there is inevitably a delay, as the process presently
stands, because the judge will say, "I am very sorry. I
don't like your care plan. I am not impressed with your care
plan. I don't think this is a case for a care order or this particular
care plan. Will you please do the work again or will someone
else do the work for you?"
Q99 Stephen Barclay: Would
you describe the current service provided by Cafcass as "world
class"?
Sir Nicholas Wall:
I don't think any judge is ever fully satisfied with the service
that is provided by anybody. Certainly we would not have the
Interim Guidance if we were entirely satisfied with the work that
has been done. I am very anxious not to get into a political
debate about Cafcass because, as you will appreciate, the Government
funds and organises Cafcass, and the judges have to make do with
what they're given. I think both Mark and I would be unanimous,
and all judges would be unanimous, in saying that what we want
is children properly and independently represented in care proceedings.
Any organisation that does not deliver that for whatever reason--and
that is a matter for you--is not world class.
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