Cafcass's response to increased demand for its services - Public Accounts Committee Contents

Examination of Witnesses (Question Numbers 120-127)

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

Q120 Chair: Do you accept what Cafcass said to us that the growth in public law cases, or the growth in the business to them, which is both public and private, comes entirely from Baby P?

Sir Mark Hedley: I would hesitate with the word "entirely". What is different this time is that, after each of these public inquiries, there has then been a dramatic increase in litigation. What has not happened here is that it has not spiked; it appears it might be plateauing. We have had a huge rise. I am not a social worker, but my guess is that the whole threshold of intervention has been driven down. There is now a much greater requirement to intervene than there perhaps was before.

Q121 Matthew Hancock: You say that the quality has not changed, and also you played down the idea of delays. You said that you're better targeting some of the work by specific focus on specific questions, but there must be increased pressure in the system, because of the massive increase. Where is that feeding through?

Sir Mark Hedley: Some of it is feeding through into delays, which are undoubtedly becoming longer, certainly in London. We are performing less well in terms of throughput of work. Well, the same amount of cases is going through; it is just that the number of outstanding cases is rising. It will work there. The other area it may work in, for example, is that Cafcass officers may be required to adopt a more restricted role in cases. I think I have seen signs of that. How that will work in practice it is far too early to say. I just don't know at the moment.

Q122 Matthew Hancock: On that point, is there a risk it works out in the magistrates' court as opposed to the High Court? You mentioned earlier that High Court judges are happy with the quality. Is it the experience of magistrates that they are also happy with the quality?

Sir Mark Hedley: There is no doubt we are spoiled in the High Court in the sense that any practitioner appearing will treat that as a big priority. You cannot extrapolate from High Court experience and say it applies everywhere. At county court level, which is what I was talking about principally, the degree of satisfaction is as we stated: there are problems. In the family proceedings courts, London is a bit atypical because we have quite a lot of professional judges as well as a unified lay bench. I am not aware--and I can only put it like this--of serious disquiet about the quality of public law work delivered by Cafcass, other than problems with allocation, delay and the like, which undoubtedly are around.

Q123 Stephen Barclay: The magistrates I spoke to before the previous hearing were telling me of instances of advice over the telephone, of desk­based reviews that are subsequently looked at.

Sir Mark Hedley: This was the emergency guardian problem. I think Anthony Douglas certainly recognised to me in discussion that that is unacceptable; you cannot run a system like that. There appear to have been serious attempts to address it, but at what price elsewhere in the system?

Q124 Stephen Barclay: This flows from that question. What I am trying to understand is from where the squeeze is coming. If the quality is maintained, if timeliness is not being unduly affected, but there is a pressure on resources, an issue of high staff retirees coming up and a high sickness rate, logic would suggest that, as much as bright minds are looking at more focused reports and smarter ways of working, is that really picking up the full slack of the problems that we have addressed? That seems quite a leap. Are there other areas, perhaps in the magistrates' court or somewhere else, where the squeeze is being felt?

Sir Nicholas Wall: I have regular meetings with the Association of Magistrates' Courts and the family benches, and they have not raised the question of quality of work with me. If you have specific examples, I will address them. I agree with Mark that the real villain of the piece is delay because if, with increased volume in the system, no additional resources are made available, particularly in the judiciary or courts, and the likelihood of cuts in sitting days, cases are going to take longer and they are going to be delayed. That is where the real danger comes. I entirely agree with the observation that came out of this Committee last time that delays are deleterious to children. It is in Section 1(2) of the Children Act. It's in the statute that delay is to be avoided if humanly possible. Ultimately, this is where we come back to the divide between us, because this is a matter for Government. If the Government want to avoid delay, they must make resources available to ensure that delay does not occur.

Q125 Austin Mitchell: Amen to that. Sir Nicholas, you say in your letter that efficient and effective case management by the judiciary remains the key to the operation of a fair child­based care system. Are you satisfied that that efficient and effective case management is uniformly provided? If it is, why did the judiciary, as the customer, allow Cafcass get into the mess described in our interim report?

Sir Nicholas Wall: I think you must understand that case management is a relatively novel concept for a number of judges. The traditional role of the English judge is the arbiter. He or she sits back; the case is brought to him and her; he or she decides; gives a judgment, goes away and doesn't see the case again. The Family Justice System has, generally speaking, been bolted on to the common law, which means that we have the adversarial system and we have judges deciding cases. In family work, the premise since the Children Act came in, has been that judges must become case managers. They cannot sit back and wait for people to do things; they must ensure they happen. My latest exordium to my judges is that you all must become case managers now. That is a message that the younger generation, of whom I would think myself, take on board much more easily, but it is not a message that is universally popular. They think, "Here one comes into the vexed area of judicial independence. Am I compromising the independence of the guardian if I tell the guardian what to do? Am I compromising my own independence if I come off the bench and tell the social worker what I want?" and so on and so forth. I am afraid the jury is still out on that. You will have to ask me that question in six months' time, when we have the revised PLO in operation. The Family Justice Review will no doubt tell us whether it takes the view that judges are effective case managers. If they are not, it seems to me there is no one else who is going to do the job.

Q126 Nick Smith: When talking about delay on this Committee, we have looked at the typical Public Accounts Committee terrain of processes, systems, staffing and so on. Listening to you today, we gain another impression of a system caught up in greater demands and complexity, in what Nicholas described as "dynamic" relationships between parents fighting their divorce, but in a different place here. If you talk about where the state should put its resources, it seems to me--and this is quite a discursive discussion today, rather than the pointed stuff we sometimes have--that the state ought to invest more in mediation, perhaps, to take some of the cases you are talking about out of this complex legal sausage machine, which you are doing a good job trying to manage.

Sir Nicholas Wall: In private law cases, that is undoubtedly true. Yes, I agree with that entirely. I think firstly the Government are a strong advocate of mediation; and secondly, the Private Law Programme, which I have sent you,[2] makes the first appointment--as I indicated when I spoke about it a minute ago--a conciliation appointment, where we try to take cases out of the system. I have been saying for years that the adversarial system is not the way to resolve private law disputes. When it comes to public law, you are talking about the state intervening in the life of a family and potentially taking a child away from his or her family, and giving that child to strangers or an institution. That is a different ball game altogether. You cannot mediate in those circumstances. You can have family group conferences, as local authorities are encouraged to do, to bring the family together and solve the problem within the family. They have been remarkably successful in cases where they have been operated, where the whole family has come together and solved the problem. Ultimately, someone has to decide whether the child has suffered significant harm, whether they are likely to and whether the child should be taken away from his or her parents. You cannot mediate that. It is very difficult to conciliate that. You need a system that deals with it. At the moment, we have a judicial system under the Children Act. The Family Justice Review will investigate that and tell us whether or not it is working. That is the system we have, and we cannot mediate that system.

Q127 Chair: Cafcass was created through the merger of a number of organisations and it seems to me that it has shifted from crisis to crisis. There has been critical report upon critical report, with a little gap in between, but basically crisis to crisis. One of the questions we are asking ourselves is whether it is fit for purpose, in that sense, for you as a customer, providing a service to the courts. This merger does not appear to have worked. Is there a better way of organising a service that would then serve children and families better, through the work that you do in the courts?

Sir Mark Hedley: Both of us and many others will have grown up with the old system. Almost everyone who grew up with the old system was a fervent supporter of the concept of creating Cafcass. When it was born, it was born with considerable support from those within the family justice system. There has been a persistent argument, which you will know much better than I, about whether it was adequately funded and launched, and which obviously I have no views about, because I do not know. It was launched with a huge amount of good will, because we had learnt to value the guardian system. There were problems with the old guardian system about Article 6, independence, because they were funded by the local authorities, whose work they were doing. There were problems there.

From a trial judge's point of view, which is where I can speak from, I consider myself to have been quite well served over the years, notwithstanding all the problems that I know have gone on in the background. I personally consider myself to have been quite well served. I could count on the fingers of one hand the public law cases where the guardian has completely lost it. There have been other cases where I have disagreed with them, but that is another matter altogether. There has been a tiny number where the guardian has simply been overwhelmed by the case. The service that is actually delivered on the ground for most of us is certainly fit for purpose. Whether the organisation is, I would not be in a position to make any comments, because we obviously see it through the lens of what is delivered to us in the courtroom.

  Chair: Thank you very much indeed. I am hugely grateful to both of you for having given your time to give this evidence. I think it will add to the quality of our final deliberations, so many thanks indeed.

2   Note by witness: This was NOT sent in advance to the Committee. It is, however a public document Back

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