Examination of Witnesses (Question Numbers
100-119)
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
Q100 Stephen Barclay:
The reason for the question is that eight of the ten Ofsted inspections
in 2009 found that the service was inadequate. In 2009 as well,
there was a massive increase to 1,250 cases without someone allocated,
but the chief executive of Cafcass feels it's a worldclass
service. One of the things I am trying to understand is the element
of improvements you feel, as the users of the service, there needs
to be, or whether actually the status quo is delivering what you,
as the users, need.
Sir Nicholas Wall:
No, I don't think it is. The position as I see it is of course
the courts need a welfare service, and the courts want a welfare
service that will undertake the tasks that the judges ask the
court welfare service to undertake. If, for whatever reason,
this service is unable to undertake the tasks that the judge requires,
the judge will be dissatisfied. My predecessor Sir Mark Potter
would not have introduced the Interim Guidance if every child
had a guardian and if every report was on time. He would not
have renewed it, and I would not have entered into the Agreement
and, no doubt, we wouldn't have the review of the family justice
system that we are having at the moment. None of us is complacent,
but we do have to work with what we are given.
Q101 Stephen Barclay: Does
it not flow from that, therefore, Sir Nicholas, that the extension
of that Interim Guidance for another 12 months means that
it will be some time before the service reaches the standard that
it should?
Sir Nicholas Wall:
With great respect, I don't think I have renewed the Interim Guidance
for another 12 months. What I have said to Cafcass, if you
look at the document--which I hope I've sent to you and I hope
you've seen--my judges have been instructed to operate to the
public law outline in clear detail, which means coming off the
bench, case managing. We have also agreed, until the Family Justice
Review reports, that we will casemanage guardians. In other
words, we will say to a guardian in a particular case, "We
think this case is about x. Will you please investigate
x?" I specifically agreed with Anthony Douglas that,
if we want x investigated in a particular way, Cafcass
will execute the work in the particular way we want it done.
Cafcass has given me an assurance that not only will they allocate
but they will ensure that, if there is an emergency or crisis,
there will be a guardian to represent the child, so, for example,
in an interim care order, or following an emergency protection
order or police protection, the child will be represented. So
I do not think, with respect, that I have renewed the Interim
Guidance. I've made it very clear that Cafcass will operate the
PLO, which I strongly believe should operate, and we will wait
to see what the Family Justice Review comes up with. No doubt
they will come up with ideas, which we'll then have to incorporate.
Q102 Chair: We're slightly
muddled on this, if I'm honest with you, Sir Nicholas, because
Anthony Douglas, when he gave evidence to us, suggested that the
use of the duty advisers would need to continue for a further
year. Now, you say in your letter that, by common consent, the
duty advisers were generally not successful. I assume what you
have just said in answer to Stephen is that you would not want
Cafcass to continue employing duty advisers. However, within
their resource constraints, and given that nobody sees there is
going to be reduction in the pressures of children coming forward,
with care proceedings being pursued, what's going to happen because,
if they don't have duty adviser, they won't have support?
Sir Nicholas Wall:
May I answer that in several ways? Firstly, it is by no means
in every care centre that the duty scheme operates. For example
in Wales, the duty scheme is unknown. In parts of England, we
do not have duty guardians. Under the agreement that I have reached
with Cafcass, there will only be duty guardians with the specific
concurrence of the Designated Family Judge. I have had an assurance
that if, because of constraints, as you rightly put it, duty guardians
have to be appointed, they will nonetheless be available to represent
the child on any application that is contested. That I think
is the best that we can do in the particular circumstances. Whether
that is going to work in London, Mark will tell you.
Sir Mark Hedley:
Part of the new arrangement is that there is a greater stress
on local arrangements, which I think Anthony Douglas told you
something about. We have an agreement that is specific to London
in terms of guardians and, in particular, in terms of removing
emergency guardians. I am bound to say Cafcass has made real
strides with that in the last few months, and we have seen a very
significant reduction in backlogs. In fact, two of their offices
have no backlog at all now, and the third has a backlog that they
hope to have cleared by next month. Of course, it comes at a
price; it means that practitioners are actually carrying twice
as many cases as they did before. The issue is how that will
filter through in terms of the service offered. I think one of
the problems we have, if I may say so, is that, although there
is a link between good systems and delivery, it is not infallible.
If you talked to individual judges, you would find that most
people were entirely satisfied with the quality of individual
Cafcass officers' work. On the whole, it is recognised as being
of good quality, profoundly conscientious and so on. Of course,
there are systemic problems which mean delays, people are not
represented and all the things that you are familiar with. The
mere fact you get the system right does not necessarily mean to
say that you will get the delivery right, if you are asking more
of practitioners than the courts require them to deliver.
Sir Nicholas Wall:
Certainly the objective of the Agreement I have reached with Cafcass
is to eliminate the duty guardian. No one likes it: Cafcass doesn't
like it; practitioners don't like it; and, in the past, undoubtedly,
it has meant that children have been unrepresented.
Chair: I think the Committee
would agree that Anthony Douglas was of the view that there would
have to be duty guardians for a further year.
Sir Mark Hedley:
He can't promise that there won't be in London. I daresay there
are still one or two but, for the most part, I would hope that
by the end of this year we will not have any more duty guardians,
but there is no actual promise to that effect.
Q103 Nick Smith: Although
Cafcass is the subject of our report, I am interested in your
point of view on local authorities and the consistency of reporting
and representation you receive from them as part of this process.
I wonder if you could tell us a little more about that. Although
it is good they have a firstclass service in the Royal Borough
of Kensington, equally, young people caught in the middle of this
sausage machine should have the same excellent service in Blaenau
Gwent. Can you just tell us a little bit more about that, please?
Sir Mark Hedley:
It is simply that there is a correlation between care cases and
social deprivation. Therefore, in areas of obvious social deprivation,
there is a higher percentage of care cases. When I was responsible
for Wales, we discovered--no one knew it until then--that there
were more children in care in Wales per 100,000 of the population
than there were in England. Nobody knew why; I do not know whether
they know why now or not, because I'm not involved anymore. There
is this correlation. The higher the number of children who may
be the subject of interventions, the greater the pressure on local
authorities, and social workers in particular. The greater pressure
on social workers can have impacts on health, retention, recruitment
and all the rest of it. My experience from being a local judge
in Liverpool, which I was for about 10 years, was that Liverpool
tended to attract the very best social workers, who relished the
challenge, and those who could not find a job anywhere else.
You had a huge spread of skill. The same will be true of Blaenau
Gwent, Southwark, Lambeth and places like that. You will get
some star social workers; you will also get those for whom it's
all a bit too much.
Q104 Nick Smith:
Are local authorities and their social workers the weak link in
this particular chain of support for children?
Sir Mark Hedley:
I think it would be unfair to say they're the weak link in it.
Part of the trouble is that we are coping with a huge upsurge,
at least last year, in work, which has taken everybody slightly
by surprise, in the way Anthony Douglas was describing to you.
They are the weak link only in the sense that they are the point
of entry into the system. I have considerable respect for the
social work evidence that I've heard over the last 20 years.
I would not want to characterise them as the weak link, but weaknesses
show up first there, because they're the point of entry.
Q105 Nick Smith:
Is that therefore the best place to engage your resources to try
to deal with what you say is a growing issue?
Sir Mark Hedley:
I think part of the PLO was indeed to try to frontload as
much work as possible because, of course, once it gets into the
court system, it starts to become expensive.
Q106 Stephen Barclay: Sir
Mark, picking up on your point, it's very good news if the duty
allocation is going to be phased out, notwithstanding London being
slightly further behind. I am just trying to understand where
the squeeze will then come. Are you expecting a squeeze in terms
of the time taken to allocate cases fully?
Sir Mark Hedley:
No, allocation is being dealt with quite quickly but, as I understand
it--and it is only as I understand it--practitioners in London
now are carrying case loads that are probably twice what they
were in the previous year. What we were doing in our discussions
was recognising that, in the life of every care case, there is,
from the guardian's point of view, quite a bit of fallow time.
There are four key points in which they need to be engaged: first
hearing, case management conference, issue resolutions hearing
and final hearing. Between the case management conference and
the issue resolutions hearing, there is quite a lot of fallow
time, when evidence is gathered, expert assessments are done and
so on. There is also sometimes a bit of time between the issue
resolutions hearing and the final trial, depending on court and
judge availability. We were wondering whether those fallow times
could be used by guardians taking on other cases and, as it were,
focusing on those four moments in a case. How that will work
and whether it will work remains to be seen.
Q107 Stephen Barclay: So
in essence they will be taking on more cases. You are looking
to phase the work almost.
Sir Mark Hedley:
They will. That is why we don't yet know the cost, having got
the backlogs down, which they have undoubtedly done, but with
the same resources.
Q108 Stephen Barclay: Would
there also perhaps be a risk of a longer period before cases are
allocated?
Sir Mark Hedley:
I think not. Because they want to allocate for first hearing,
they will allocate quickly. I think it is just a matter of seeing
what the impact on individual practitioners will be down the line.
I am not in a position to predict that. Experience alone will
determine it.
Q109 Chair: Will there
be an impact on the resolution of private law cases, because of
the quite proper emphasis on prioritising public law cases?
Sir Nicholas Wall:
Inevitably. Once again, this has become a matter of case management.
Under the private law outline,[1]
which I have sent to you, first of all we have tried to take as
many cases as we can out of the system by making the first appointment
effectively a conciliation appointment, where no evidence is filed,
where the judge comes off the bench, the Cafcass officer is present
and there is a chat with the family about the issues and whether
they can be resolved then and there. The Government are also
keen on a preaction protocol for mediation. There is a
very strong emphasis on mediation and conciliation. When cases
come into the system, by definition, they will be the most difficult
because 90% of people settle their own cases without coming anywhere
near the court in the first place, and we hope to be able to divert
a large number of other people away from the court process. It
is very important--and the judiciary is learning this lesson and
I think it is helping Cafcass--that we are focusing our reports.
We are saying, "Look, we want a report about x.
We don't want a general report that takes six months to write,
where you have to talk to everybody. We want a report on a specific
issue. Here it is; go away and do it." Cafcass has
found that focused reports ordered by the judiciary have made
it much easier for them to combine public and private law work.
There are still delays, but fewer than they were.
Q110 Chair: In the NAO
Report, as well as the increase in public law cases, there was--I
think I am remembering the figure correctly--a 16% increase in
private law cases, which appeared to be a trend. There was the
worrying statistic that the average length of time for determination
of those cases was over a year, which is a heck of a long time
in a child's life. With this new emphasis on ensuring a proper
allocation of public law cases and, despite your best endeavours,
nothing to suggest that upward trend in private law cases is suddenly
going to change, should we be concerned?
Sir Nicholas Wall:
The difficulty with private law cases--I'm sure Mark would agree
with this--is that they are what we call "dynamic".
They do change. Parents who are at loggerheads over their children
rarely behave rationally. Therefore, it is very difficult to
bring termination to such disputes. We've all had experience—Mark
more than most, I think—of what we call the "intractable
contact dispute", which goes on and on. Every time on a
Friday afternoon you order contact for Saturday morning, you think
you must have made it failsafe; it must work. It does not; something
goes wrong. You know it is because the parents are not really
arguing about the welfare of their child; they're fighting each
other. We've come to the conclusion that we simply cannot afford
to go on having these endlessly long-drawn-out private law disputes.
What we will be doing under the private law programme
is, firstly, trying to eliminate as many as we can from the system;
and, secondly, identifying the issue swiftly and allocating the
case appropriately. If, for example, it is a straightforward
contact dispute when there's no domestic abuse, and it's simply
a question of quantum, it would be dealt with by the family proceedings
court or possibly the county court. The really difficult intractable
cases will be left to the High Court. The length of the case
is not necessarily an indication of inefficiency. It's an indication
of the difficulty of the dispute. I've certainly had cases in
the past where parents have come back time and time again to argue
about points which you thought any rational couple would be able
to settle between themselves.
Sir Mark Hedley:
That's right. The problem is also, although cases take longer
than we would like them to take, the trouble with the statistics
is that there is no very great clarity about what is meant by
the end of a case. The trouble with the kind of case that Sir
Nicholas has been describing is that you make a final order, but
it most certainly isn't the end of the case. It comes back and
back and back. It is therefore quite difficult to judge how long
some of these cases truly take.
Q111 Chair: To conclude
that little bit, your work would suggest that the trend that we
have seen—that trend of 16%—is growing.
Sir Mark Hedley:
It is true right across the westernised world. We had a presentation
from an Australian academic recently, who was demonstrating that
the private law trend is across the entire westernised world.
Europe, Australia, North America, everywhere shows a similar
trend, which has to do with the rise in consciousness of parenting,
and a separation of parenting from divorce issues.
Q112 Chair: What is Cafcass's
role in that?
Sir Mark Hedley:
They are profoundly involved. We try to focus on these single
or short issue reports.
Sir Nicholas Wall:
The other factor is the fact that there will be an increasing
dearth of public funding, and public funding for private law cases
will effectively disappear. We will have an increasing number
of litigants in person. If people are determined to litigate,
they will litigate in person, which takes longer. They will slow
the system down.
Q113 Chair: Presumably
in those cases, you are also more dependent on the professional
judgment of the Cafcass adviser.
Sir Nicholas Wall:
In an ideal world, one would send the couple off to a social worker
or a mediator, and decide, "This is not a case for an adversarial
dispute between the two of you. You should go away and lock yourself
in a room with someone else and settle it." That is why
I said earlier that the court requires a welfare service, because
we are not trained to do that sort of work. We can make decisions,
but we can't tell people how to settle cases or how to behave,
necessarily.
Q114 James Wharton: Could
I go back a little to the challenges Cafcass has faced? We know
that after Baby P there was a huge increase in the number
of cases that they have to deal with. Something we explored in
our previous hearing on this matter was the impact of that, if
there is one, on the quality of the work that Cafcass is able
to do. Obviously in any walk of life you have a balance to find
between quality and volume. If you want to do more volume, you
can reduce the quality but, when we're dealing with situations
such as these, when you're dealing with individuals, with people
and children, the quality is of paramount importance. I think
you may have partly answered this with discussion of focused reports
but, in terms of the pressures that Cafcass has come under, has
there been any deterioration in the quality of the reports that
they're actually bringing before the courts?
Sir Nicholas Wall:
In public law work, I have not detected it. I am in regular contact
with the Circuit bench, and I have had no reports of the quality
of the work being done by guardians in care proceedings. I have
had occasional complaints about the quality of work in private
law cases, and I have raised them with Cafcass. They have assured
me that they will take steps to try to ensure that they do not
occur again. I have been in the Court of Appeal for the last
six years, so I have not done this work directly until very recently,
but Mark would be better able to speak on this. I have not found
that the quality of the work in care proceedings has deteriorated.
Sir Mark Hedley:
I think that's right. The increase in volume has worked itself
out more in terms of delays than the actual quality of work ultimately
done. That is because there is rightly considerable anxiety about
delays. That raises issues about how you make the tradeoff
that you mentioned between volume and quality. Our anxiety is
that, in care proceedings, we are probably making the most draconian
orders that any judge has had the power to make since the abolition
of the death penalty, because we can remove children permanently,
direct that they are brought up by strangers, never see their
parents again, etc. These are quite frightening powers, when
you stop to think about them, so there is a high degree of anxiety
to get these cases right. You would find us instinctively anxious
about the idea of trading off quality.
Q115 James Wharton: Within
that, how would you assess the quality of the Cafcass reports?
How regularly, for example, does a judge ask for a second report
or opinion?
Sir Nicholas Wall:
One does not in care proceedings. I cannot think of a case in
which one has said that the work of a guardian was so inadequate
that it had to be done again by somebody else. One has to remember
this is a worrying problem for the future, because most guardians
are experienced social workers, many of whom have spent a long
time in local authorities, and have then retired from local authorities
and gone private or gone into Cafcass. As Anthony Douglas pointed
out, one has an age problem, because you have an ageing workforce
who are extremely experienced but are going to retire. Who is
going to replace them? This is an anxiety we have.
Q116 Chair: One of
our anxieties is that it's a very unhappy organisation. If you
look at the sickness levels through to the number of people who
have left or were managed out--I don't know quite how it works--it
feels to us to be an unhappy organisation. The question to you
is: does that impact on the quality of the work or the timeliness
of the reports? Do you feel that, from your perspective as the
customer?
Sir Mark Hedley:
I am bound to say you would not detect it sitting as a judge in
court. What I suspect is part of the problem is that the guardians
pride themselves on the service they deliver. The pressure of
volume is leading to constraints on what they're told they can
do, and they do not like it. They want to deliver the service
they have always delivered to the courts. There is probably a
real tension bubbling around in there, but you would not know
it from the courts' point of view. The guardians provide us,
for the most part, with a very good service.
Sir Nicholas Wall:
They are fiercely independent people. One of the points in the
agreement I had to wrestle with very carefully was the independence
of the guardian. Under the Children Act, the guardian is given
very wide powers indeed. Section 42 is unprecedented in
the powers it gives a guardian to go to a local authority, look
at documents and turn it upside down, if they want to. Historically,
guardians have been very independent people. It has been a genuine
culture change for judges to be told, as I am telling them now,
"You must casemanage the guardian. You must tell the
guardian what to do. You say what you want. You must tell the
guardian." Historically, one has said to the guardian, "You
are the expert; get on with it. Look at the powers you have been
given. Go ahead and do it." That is a real change. I do
not think one should underestimate both the quality and the independence
of individual guardians. They are fiercely independent.
Q117 Jackie Doyle-Price: You
seem to hold Cafcass in very high esteem. I am wondering to what
you degree you think this spike or difficulty has highlighted
the issues with local authorities. Speaking as a constituency
MP who deals with cases of children who move from local authority
to local authority in care, I see a disparate level of performance
between individual departments. To what extent is that where
the real problem lies?
Sir Mark Hedley:
We do not have any statutory involvement with children after a
care order is made. The problem of children drifting around the
care system tends to be a postcareorder problem.
We do not come across that on the whole, except in so far as the
children's societies and the like ensure that we know. I think
within the local authorities themselves, again there is quite
a lot of handtomouth operating, but that is because
care cases are on the whole very messy things. The care case,
where you have a dead child and everyone wants to know why--which
are the cases we get--although they are quite complicated, they
are very easy as a concept. The substanceabusing parents
who are substance abusing in the third generation, none of whom--grandparents
or anybody else--have any experience of being properly parented,
present extraordinarily messy cases due to the tension in local
authorities between trying to give these families a chance to
be families and intervening to wreck the show. They are extremely
messy. In a sense, we have to live with that.
Sir Nicholas Wall:
One of the points we have emphasised to the Family Justice Review
is the need for there to be proper postcareorder monitoring
of children under care plans. In the old days, when I started
at the Bar, there was the Family Law Reform Act of 1969. The
judge would make a care order and say, "Come back in six
months' time, please, and tell me how it's going. Is it working?
Is the child settling down? I want a report." The Children
Act and a case called A v. Liverpool Corporation in the House
of Lords made it absolutely clear that, once you have made a care
order, that is it: you have no further responsibility and Cafcass
has no further responsibility. The guardian drops out of the
case; the judge drops out of the case. It is down to the local
authority and, if it's an adoption case, the prospective adopters.
I think there is this very clear division of responsibility,
which causes us a degree of unease, and it makes making a care
order very difficult because you get to the point where you say,
"If I don't make a care order, the child will suffer. If
I do make a care order, I don't like the care plan. What do I
do?"
Q118 Jackie Doyle-Price:
I think you were being a bit too generous when you said that areas
of higher social deprivation will have more cases and, therefore,
it is more difficult, because ultimately we need to have a system
in which every child has the right to the same degree of protection.
To what extent do we need to encourage better practice across
the board in local authorities to ensure that that happens?
Sir Mark Hedley:
I wasn't trying to suggest that you shouldn't. I was simply saying
there is a correlation between social deprivation and the incidence
of care cases, which I hope was no more than a statement of the
obvious. Of course good practice is crucial. On the whole, my
experience has been that I have found social workers a fairly
impressive group that I have had giving evidence to me and that
I have dealt with. The problems are often systemic, as perhaps
we are facing in Cafcass as well. Therefore, when social work
cases go wrong, it is very often not because the social worker
is incompetent, but because they have either been given something
they are not up to or have not been sufficiently supported in
the tasks they have.
Q119 Jackie Doyle-Price: What
is on my mind is this sudden spike or increase in cases in some
local authorities. That has found its way into Cafcass because
the volume has gone up, and the amount of work that could be done
by Cafcass has gone down, which is obviously part of the problem.
Sir Mark Hedley:
The reality is that Baby P drove down the thresholds of intervention
by local authorities and families. We have always known the thresholds
were variable. As a barrister, I used to do both Liverpool's
and Cheshire's work. If Liverpool had applied the Cheshire standards
of goodenough parenting, the system would have collapsed.
There has always been a degree of flexibility, but there is no
doubt that, because the intervention levels have been driven down,
we have acquired a huge number of extra cases, particularly concerning
substance abuse and neglect. They are very messy; that is the
trouble with them.
1 Note by witness: The reference should be to the Revised
Private Law Programme (a Practice Direction). This was NOT sent
in advance to the Committee. It is, however a public document. Back
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