Examination of Witnesses (Question Numbers
196-218)
Dr Judith Freedman, Judith Timms OBE, and Harry Fletcher
1 March 2011
Q196 Chair:
Good morning. Would you care to introduce yourselves briefly please
for the stenographer, not that you need any introduction?
Dr Freedman: I
am Dr Judith Freedman. I am the convenor of the Consortium of
Expert Witnesses to the Family Courts.
Judith Timms: I
am Judith Timms. I am the Policy Consultant for Nagalro. That
is the professional association for family court professionals.
Harry Fletcher:
I am Harry Fletcher, Assistant General Secretary of Napo, which
is the trade union that represents probation and Cafcass staff.
Chair: Thank you.
Q197 Claire Perry:
Thank you for joining us today. I would like to ask some questions
around the thorny topic of expert witnesses. The MoJ has stated
in its 2010 report that there has been a substantial increase
in the number of expert witnesses. Indeed, Barnardo's told us
that this increase in witnesses was one of the contributory factors
to the delay in the family courts. Do you think there are too
many expert witnesses in public family law cases? If it is not
true, why is it perceived as such? This is very much a topic people
focus on when we are looking at cost and delay in the public law
system.
Dr Freedman: Perhaps
I could start. Our consortium now represents 500 experienced professionals—there
has been quite a considerable increase since we filed our submission
with you in September—which means that we represent a significant
proportion of the expert witnesses who report to the courts. We
are essentially clinicians. We come from a range of medical and
surgical specialists, forensic physicians, psychiatrists, adult
forensic and perinatal, child and adolescent psychoanalysts, psychotherapists
and psychologists. So we cover quite a lot of different questions
that the court raises.
I know from reading Jonathan Ewen's evidence
to this Committee, from Barnardo's, that he said the court should
place more trust in social workers and guardians. We agree that
social workers and guardians are important to the well-being of
children, but I think it is important to recognise that expert
witnesses are clinicians. That means that we bring to the court
our knowledge and experience in vital areas that social workers
and guardians are not trained to assess. For example, as medical
specialists we advise the court on whether sexual or physical
abuse has occurred. Similarly, the psychiatrists diagnose mental
illness, personality disorders and drug and alcohol abuse. This
is why an experienced childcare solicitor said to me recently,
"The family courts couldn't operate without expert witnesses."
Q198 Claire Perry:
Dr Freedman, would your assertion be that there are not too many
expert witnesses currently operating in the system?
Dr Freedman: Obviously
I am not in a position to have an overview of numbers, but we
sometimes feel that there have been too many experts appointed
in one case because everyone feels that they have to have their
own expert. When the court accepts the importance of a single
jointly-appointed expert, in general we think that is a system
that works well, provided there are not other issues that also
need separate expert opinion. For example, a multi-disciplinary
team might be able to cover all the issues about parenting and
the needs of the children, but we may still say it would really
help if there was a drug and alcohol specialist who could comment
on particular questions about drug and alcohol abuse. We are certainly
not in charge of how many instructions there are. We comply with
the instructions that are given to us.
Q199 Claire Perry:
I know you have said before, and it sounds as if you are repeating
it, that there may be cases where a multi-disciplinary expert
could save a lot of time. We have cases where an expert will opine
on a parent's mental state but not on their parenting skills.
That must be very unhelpful, I suppose, in trying to get resolution,
so there may well be a role for either joint commissioning of
an expert or an expert that is working across several disciplines
as a way of speeding up the process.
Dr Freedman: The
parties who are instructing don't always recognise that. I work
from the perspective of having available to me a multi-disciplinary
team. More often than not, I have to tell the people instructing
us, "It would be more helpful if you would ask us to assess
the adults and the children rather than just one or the other."
We try and encourage people to do that. We are not in charge of
the instructions. If the solicitors don't ask us to do that, we
can't do it.
Q200 Chair:
Ms Timms or Mr Fletcher, do you have a view on that at all?
Judith Timms: We
need to think about why the expert witness evidence is necessary.
We do need to look at this very complex profile of parents' problems—43%
have serious mental health problems as evidenced in the cases
before the court. Dr Brophy's review of childcare practice over
17 years has shown some very significant and consistent findings.
One of the findings is the limitations of the social work evidence,
for example. This is one reason why expert witness evidence is
necessary. There are consistent findings that 40% of cases arrive
at court without a core assessment having been carried out. Without
the core assessment, the court is not in a position to have the
information that it needs to make the right decisions for the
child. These are very complex decisions.
While Cafcass officers and children's guardians can
be considered as experts in general childcare matters—bonding
and attachment; parenting capacity; which parent a child is more
attached to and all of those matters—when in simplistic
terms you can see that a child might have been bitten, you need
an expert to tell you whether that is a human bite or a dog bite.
You need a radiologist to tell you whether this is accidental
or non-accidental injury on the basis of the forensic and medical
evidence. It is question of knowing early on in the process and
identifying whether it is general childcare expertise that you
need or specific childcare expertise. That is extremely important
when we look across a range of the problems for children of physical,
sexual and emotional abuse, and consistent and multiple allegations
of long-standing and chronic neglect of children. We need that
expert witness input to tell us what the sequelae are going to
be from the experiences that this child has had. The expert witness
evidence is part of a developing body of knowledge which allows
us to apply the accumulated research findings in a dynamic way
and take practice forward.
Harry Fletcher:
I am sure the Committee will be aware that the anticipated expenditure
of the family court system in the financial year that is just
about to end is £1.6 billion. I recall a discussion about
six months before the last general election with the Secretary
of State for Justice. He was alarmed because he had discovered
that expenditure on experts in the family courts had gone up,
from memory, threefold in about four years. It was the largest
increase in any of his budget heads. He asked me why I thought
it was. The reasons are the same as the ones I would give today,
which my colleagues have explained. The cases are far more complex
than ever before. There are difficulties in interpreting individuals'
behaviour and in ascertaining what the causes of neglect are.
Whether we are police, probation or working in the family courts,
we all now live with the risk-averse culture and the need to get
it right at all costs. Ultimately, I think the question we have
to decide is what comes first: is it cost or is it the best interests
and welfare of children?
Q201 Claire Perry:
But is there not a danger that expert evidence is crowding out
common sense? Ultimately, these are decisions that judges would
have made in the absence of quite the same level of expert witnesses
in the past, and you would have relied on social work reports
and on solicitors' evidence. I take your point, Mr Fletcher, about
this risk-averse culture. For goodness sake, I hate to think what
an expert witness would make of me and my family. You can imagine
them looking for medical conditions that perhaps don't necessarily
exist or indeed are just a normal part of human behaviour. I worry
that this constant risk aversion—this inability to stand
up, make a decision and apply common sense—is perhaps leading
to this very dramatic increase. Yes, we have had Baby P, but has
there really been such an incredible complexity in our family
law cases in the last five years? I personally don't think so.
Harry Fletcher:
I think the cases are more complex, but the fact that the increase
in expenditure is so great over such a short period means there
are questions there that need answering. I had sympathy with the
former Secretary of State when he had those discussions but struggled
to see, because of the risk-averse culture, how we could reduce
that expenditure only at the margins. You are right: I was an
independent social worker a long time ago in care proceedings
and often I was the only person who appeared apart from the local
authority and people acting for the parents in court. Now I am
sure that if I went into one of those proceedings there would
be four or five people.
Judith Timms: I
think there are some issues around social worker training and
the confidence of social workers and children's guardians, to
feel competent in that general childcare expertise. We probably
need to look at the beginning of the process as well in terms
of what you would refer to as common-sense decisions or common-sense
conclusions. It is a body of knowledge which social workers who
are being precipitated on to the front line are lacking in confidence
about approaching. You do need those years of experience; you
do need to have that confidence.
Sometimes as a guardian, in my practice, I've said
in the past, "We don't need an expert in this case, because
actually I can see what is needed, I feel I have the experience
and I can put that across to the court." It is something
to do with confidence in the role. I do think that social workers
are sometimes sold short on how well equipped they are to go into
court and stand up under cross-examination. I think those are
some of the issues that the Munro review of child protection social
work is addressing.
Q202 Claire Perry:
Of course, with the proposed funding changes, we will be removing
legal aid in private family law cases where there is no domestic
abuse. So we will not have recourse to the public purse to pay
for experts in those cases. What do you think will be the impact
on case numbers, and also the actual impact on children, whom
ultimately we are here to try and help?
Judith Timms: If
I can address the impact on children first of all, we are extremely
concerned about the impact of these measures. What is happening
is that, apart from the domestic violence cases, the other cases
are being removed from funding scope. The definition of domestic
violence is being taken very narrowly in cases where there have
been criminal orders—non-molestation or occupation orders.
That excludes an awful lot of grey area. The recent Court of Appeal
case has defined domestic violence in the much broader terms of
verbal abuse, bullying and controlling behaviour. Over the years,
the split between public and private law cases has not been helpful
to children, because the impact of domestic violence on children
in private law has been largely overlooked and also the fact that
they may also be not just in private law conflicts but also children
in need or at risk in terms of the Children Act.
Our key concern is that children are not represented
within this process. In the earlier session you touched on the
fact that there is no separate representation for children, that
section 64 of the Family Law Act 1996 was not implemented, and
also section 122 of the Adoption and Children Act 2002, which
sought to achieve the same end, which was separate representation
for children. In private law proceedings, Parliament has twice
decided that children need to be represented more often than they
are. In fact, the proportion of children who are separately represented
now is falling, according to the Cafcass latest statistics and
indeed NYAS statistics—National Youth Advocacy Service—both
of whom represent a small number of children under the provisions
of Rule 9.5 of the Family Proceedings Rules. In 2008, Cafcass
recorded that there were approximately 1,800 cases in which children
were separately represented in private law proceedings. In the
last annual report for last year it has gone down to 998. In fact,
the resources are being squeezed. It is children, who are, I would
submit, our main concern in family breakdown, who are receiving
a smaller and smaller share of the cake.
Dr Freedman: Can
I add to that? Those of us who have prepared expert reports in
private law cases know that these are generally the most complex
cases and that the concerns about the state of the children in
these families are of grave concern to us. This includes not only
emotional abuse, which is a concern throughout the serious private
law cases, but also allegations that are made throughout these
cases of physical and sexual abuse, which may be founded or unfounded
and in both ways are damaging to the children.
Harry Fletcher:
To add briefly, what colleagues are already telling me in Cafcass
is that a consequence of an increase in applications in person
is that proceedings are taking two to three times longer. That
is because of delays, adjournments and judges having to intervene
and explain to the parties who are not represented what is going
on. I don't know but it may well be that taking away legal aid
is going to cost more.
Q203 Chair:
Barbara Esam of the NSPCC told this Committee that "there
aren't enough experts around of sufficient quality. That means
that the ones that are there are overworked and not available,
which also causes delay." Do you agree? Are there particular
disciplines where the shortage, or the perceived shortage, causes
most difficulties? What are the reasons for this?
Dr Freedman: I
have to say that there is a crisis now in expert witness availability.
This is partly due to the increase in the number of proceedings
and the need to move forward as soon as possible, but it is also
due to the critical issues about funding, which are already deterring
some of the most experienced experts from continuing to work in
this field. I hope we will have time to go into that later, but
people with years of experience do not want to be devalued. That
is really what is happening to them now. I think there are potentially
a sufficient number of experts to report to the courts, particularly
if issues around timing and how instructions proceed can be addressed.
I will talk about that in just a moment. But if experts are being
pushed out of the field at the same time, the number is going
to become even more critical. I said I would talk about—
Q204 Chair:
Before you do, when you say experts are "being pushed out
of the field", is that really a resource issue? In other
words, you say they are undervalued, but are they underpaid as
well relative to what they think they are worth? That is a rather
crude way of putting it.
Dr Freedman: I
can say to the Committee that, since I made our submission in
September, the funding issues have become so critical that quite
senior experts are telling me that they are closing down their
family court work.
Chair: I am sorry, I interrupted
you. Carry on.
Dr Freedman: I
can go into that now or we can come on to funding later.
Chair: Yes; please do.
Dr Freedman: Since
the Green Paper was released, the Legal Services Commission embarked
on a cutting back of fees without ever telling anyone that I know
of what their guidelines are. Expert witnesses find themselves
in a dreadful bargaining situation, without even knowing what
the guidelines or benchmarks are. We are unable to achieve prior
authority for our work, which used to be the way the LSC operated,
so that experts are now routinely told, "Get on with the
work and the LSC will decide after the fact how much you can be
paid." It is like calling a plumber in and saying, after
the job is complete, whether I will pay you your full fee or just
half the stated fee.
Q205 Mrs Grant:
Dr Freedman, just on a clarification point, are you saying that
the work is done, you can't get prior authority, but the expert
is being instructed to do it, rightly, by the solicitor? The bill
is then submitted. The file is costed and it comes back reduced.
Are we talking a small reduction or in some cases quite a substantial
reduction?
Dr Freedman: We
are routinely talking half the cost.
Q206 Mrs Grant:
So up to 50%?
Dr Freedman: Yes,
and the reports come back from the LSC saying the work was excessive.
"The work that you undertook was excessive", despite
the fact that a detailed work proposal has been sent to the instructing
solicitor in advance. Often the court has seen the detailed work
proposal and the judge has agreed it. The LSC then says, "We
don't care what the judge said." We have had written comments
from the LSC saying, "We don't care what the judge said.
It was excessive and we are not paying more than half."
Q207 Chair:
Prior to the LSC of course, under the old Legal Aid Board system,
if you engaged a witness you would ask the witness for a statement
of his or her fees and the likely number of hours that he or she
would spend, and then there would be prior approval.
Dr Freedman: That
is no longer the case. Even though the Green Paper states that
the LSC is giving prior authority, in fact the experience of all
the expert witnesses, particularly in the last year, is that there
is no prior authority. We ask for it. Solicitors come back and
either say to us, "We asked and the LSC refused", or
they say, "There is no point in us even asking because the
last 10 times we asked the LSC refused." So there is no prior
authority. Experts have handled this in different ways. Some have
withdrawn from the work. Some have said, "I will do my best"
and hope for the best. Some have asked for a written agreement
that solicitors will support them in an appeal, if necessary.
Expert witnesses are finding that they are spending increasing
amounts of time appealing LSC decisions about cases that are already
finished. At the same time the LSC has started a process, which
they announced in their business plan, of 'claw-back', where they
have been looking at old bills and asking experts sometimes to
return money on cases that were paid four years ago. Our legal
advice is that this is probably illegal, but that doesn't stop
the LSC from doing it and it doesn't stop us from having to write
detailed accounts to justify the work that we have done. It has
become a nightmare scenario, and I think expert witness work is
at a crisis right now.
Harry Fletcher:
Just to add to what Judith said, the context is that care applications
in January of this year were the highest ever for a January. Care
applications in February of this year—so as of yesterday—were
the highest ever for a February. In 10 of the last 12 months,
care applications were a record for those 10 months, ever. We
all know that following Baby Peter, which I think was November
2008, there was a surge in the next 18 months of 30% in care applications,
and it seems they are still going up at the rate of 3% to 4% per
month. Care cases are taking longer than ever to reach a conclusion.
Cafcass tell me that the average is now 55 weeks, and divorce
and separation cases are several weeks longer than that. I agree
entirely with what Judith is saying about a crisis.
Dr Freedman: Can
I just add on to what Harry has just said? I have done a whip
round of my members before coming to this meeting to ask, "What
is happening to your workload?" People are routinely reporting
to me, probably more in the southern half of the country than
the northern half, but to some extent everywhere, that they are
getting more inquiries than ever. There are more requests for,
"Will you consider doing a piece of work?" but fewer
instructions. So just at a time when the court needs more expert
witness input, in fact most expert witnesses are not working to
capacity. That is not because we want to do it that way and it
is not because we want to cause delays. In fact, many of us are
finding that we agree to do a piece of work, we give a date when
we can complete it, and we haven't even received the letter of
instruction by the time that date has passed.
Judith Timms: May
I say that there is a particular problem about the availability
of independent social work expert witness reports? Basically,
independent social workers are effectively being locked out of
the system. This is a combination of factors and is the result
of a funding disconnect between the DfE, the Legal Services Commission
and the MoJ. Independent social workers have been excluded from
the review of all other expert witness fees which the MoJ has
carried out. The fees are about to be capped at the Cafcass rates
of £30 outside London and £33 inside London.
Our view is that there are gradations of expertise
within every profession and that you have to look at a situation
where you have GPs, who are all doctors but who refer to consultants,
and there are independent expert social work witnesses who have
a considerable body of expertise and experience. Roughly half
of our membership act as independent social workers. I have done
a bit of research amongst colleagues and many of them have in
excess of 25 years' child protection experience. That is being
compared with a situation within Cafcass where Cafcass is now
recruiting people who have only two years' post-qualifying experience,
so there is a big gap.
The Legal Services Commission are saying that they
have excluded independent social work expert witness reports from
the scope of the expert witness review because that has already
been decided by the Cafcass rate, but that is something which
is becoming more and more contentious. Now the expert witness
review has reported, our plea has been, "Please include us
in that general review", because otherwise we are locked
out of the system. We are aware that the Legal Services Commission
is most reluctant to pay independent social work expert witnesses,
but at £30 an hour our rates look fairly competitive in comparison
with some other clinical expert witnesses. Our experience is that
we can save an awful lot of time and save the costs of more complex
expert witness cases on the basis of our general childcare experience.
We have made submissions to the Legal Services
Commission on this. Even before the implementation of this new
fee, which is now scheduled for May, fees are being cut. I would
echo what Dr Freedman has said. Also, what the Legal Services
Commission is doing is agreeing a rate and then the fees are being
cut retrospectively. People are carrying out work and then being
told, "Actually that is your fee, fine, but now we are cutting
it by this percentage in retrospect."
We have some highly committed people and we estimate
there are between 1,500 and 2,000 really well qualified, experienced
child protection expert witnesses who are one of the major cogwheels
in keeping those court proceedings turning. They are being excluded
from the system. They cannot work at that sort of rate. Basically,
in the expert witness review there is nobody who has a lower rate
than independent social work witnesses. The only comparable rate
is process servers. Vets, for example, are £90 an hour. Drain
experts are something like £60 an hour. The message to independent
social workers as expert witnesses is, "We don't want you.
We don't value your contribution."
There is absolutely no data on their contribution.
Dr Brophy is currently looking at a possible research project.
The MoJ and the DfE have both admitted they have no data on the
number of independent social workers, their contribution to the
proceedings or their role in facilitating the completion of proceedings.
There is no data and so all of these decisions are being made
in an entirely unsupported way. It has got to the stage now where,
if this fee-capping is implemented, then many people have already
been driven away from the work and many more will go. That will
be to the detriment of the children in the proceedings.
Dr Freedman: To
put into further context the data exercise that you were saying
the independent social workers were left out of, it was a very
poor data exercise. I sat on the Ministry of Justice Committee
that was reviewing the work. We told that Committee over and over
again that the data was insufficient and did not properly reflect
the work of expert witnesses. So not only were you left out, but
you were left out of a very poor data exercise. The decisions
are being made across the board without sufficient data.
Q208 Chair:
I hear what you say about the crisis. I have one other question
I would like to ask you. Do you believe that there is sufficient
regulation of expert witnesses? If not, should something else
be done? I am mindful of the evidence you have given, by the way,
but I think I should ask you that question anyway.
Dr Freedman: It
is hard to know what makes people good at their work. For the
most part the regulation has taken place within the system, in
that good people are asked back. We all have our professional
regulation that we have to comply with. For example, I am a Fellow
of the Royal College of Psychiatrists. Does that make me a good
expert witness? Maybe it does; maybe it doesn't. I happen to be
somebody who is experienced at doing expert witness work. I have
colleagues who are also fellows, who wouldn't touch it at all
because they feel it is not something that they would be good
at doing.
There would be an argument to be made down the road
for expert witnesses to show that they have undertaken training.
It is very hard for us to keep up with the new pieces of legislation
that come in about the family courts or for my colleagues who
work in the criminal courts. We are really the people who are
unrepresented in the court proceedings. We are the only people
in the room who don't have a legal representative. For us to be
recognised and to say, "Here, there are training programmes
that the court system wants us to undertake," I think most
experts would welcome that.
Chair: Ms Grant has some
questions to you about Cafcass.
Q209 Mrs Grant:
Cafcass has faced some fairly considerable criticism. Do you think
Cafcass has improved? That is a question to all of you.
Harry Fletcher:
I do believe that Cafcass's leadership understand what its problems
are, but the difficulty I and my members have is their solutions.
Over the last five or six years we have seen a very significant
increase in what we will call senior manager grades. The ratio
in terms of money is about £40 million spent on the front
line and £20 million on managers. We have seen a very significant
increase in quality inspections and Ofsted inspections of staff,
which takes a lot of time to prepare for. We have seen a significant
increase in the monitoring of staff. Also, there have been problems
lasting until now in terms of allocation of cases. I am sure Cafcass
will say that very few cases are unallocated, but if you were
to talk to a sample of staff on the ground they would say, no,
that is not true and that is disguising reality. In the good old
days, cases would be allocated following discussions in teams
or individually. Increasingly now, it is done without any kind
of discussion and allocated by e-mail. Often the managers, who
are not practitioners, will hold cases waiting for a time when
they can be distributed. I do believe that Anthony Douglas and
his team know what the problems are.
Q210 Mrs Grant:
Can I be blunt, Mr Fletcher? I am sorry to jump in there. Are
you saying that it might be the case that there are perhaps too
many managers and not enough front-line workers?
Harry Fletcher:
I think an observation I would have across the board in the public
sector, including Cafcass, over the last decade or so, is yes,
there was a very significant increase in the employment of senior
managers, middle managers and regional managers. The number of
people on the front line stayed the same, so therefore the ratio
changed.
Judith Timms: I
think Cafcass has faced the most enormous pressures. What practitioners
have been doing over the last few years has been beyond praise
because they have been struggling with the most enormous number
of cases, all extremely difficult. Having worked as a guardian
myself for many years, I know what it is like to worry about so
many of those cases and the overwhelming nature of the stress
that you encounter. In that situation you need to feel that you
are in a supportive organisational structure.
Our problem, and I agree with Harry, is the
solutions. The operational model which is being driven through
is unfortunately misguided in some elements. The emphasis has
been on a process-driven, line-managed system which is very similar
to that found within local authorities and which is now increasingly
being called into question. The strength of the Cafcass system
in public law is the tandem model of continuity of oversight for
a particular child during the life of those proceedings. It is
the continuity and the vigilance of that oversight which provides
the safeguard for the child.
If you replace that, which is our fear, with a proportionate
model in which children's guardians may opt in and out at various
points and there is front-loading in the early part of the case,
and then to all intents and purposes as far as the child is concerned
the child is not then seen until later on in the proceedings,
that does not give that particular child in the centre of the
proceedings that sense of somebody being with them through those
proceedings, observing what is going on and seeing what is going
on. We are concerned that there are now three categories of allocation:
unallocated, duty allocated and substantively allocated.
Q211 Mrs Grant:
If I could just pick you up on the point you made just before
you went on to allocation, which was following the child through,
we have received written evidence to this Committee to the effect
that, in order to help decrease some of the backlogs, Cafcass
officers were not meeting children. They were doing interviews
over the phone and were not visiting homes. What is your view
on that point? Do you agree with that? Is that happening?
Judith Timms: I
think it is happening in some cases, particularly in the duty
allocated category. The risk assessment of the child's situation
may be an arm's length process. Nagalro are extremely concerned
about arm's length risk assessment. We would like to see key performance
indicators which indicate when and where the child was last seen.
In the event of a tragedy and a serious case review, the first
question which would be asked is, "Who saw the child last
and when was that child seen?" Unfortunately, my understanding
is that the system of data collection and the key performance
indicators don't tell us that at the moment. They don't give us
the reassurance of when and at what stage the child was seen.
If you have a process-driven system—
Q212 Mrs Grant:
It is fundamental, isn't it?
Judith Timms: It
is fundamental. It is absolutely fundamental and as a guardian
one's first preoccupation is to say, "Where is the child?
Right, let's get over there as soon as we can," and see the
child for yourself. There is nothing that can replace that. That
is our worry about this process-driven system of KPIs. In fact,
the report which was commissioned by the DfE from PA Consulting
to look at Cafcass and its operation drew attention to the fact
that they were worried about the use of allocation as a key performance
indicator because it may give you a false sense of security in
terms of the fact that you have allocated a case. That implies
that something is being done. It implies responsibility and it
shifts the burden of responsibility on to the hard-pressed practitioner,
but it doesn't necessarily mean in that duty allocated category
that the local authority files may have been read in every case
or that the child has been seen at that stage. The issue now is
not so much about numbers but the quality of the service that
is being provided. We need to drill down into what that proportionate
model actually means.
Dr Freedman: Just
to connect to the Committee's questions before about representation
of children, five years ago when I spoke to a child, the child
would tell me about concerns and tell me about the discussions
that he or she had had with the guardian. That no longer happens.
Now I will ask children, if they haven't mentioned it, "Have
you discussed this with your guardian?" More often than not
they will ask me, "Who is that?" If I name the guardian,
if we are lucky enough to have a guardian by then in a case, they
will say to me, "I think maybe I saw them once", or,
"I haven't ever seen them." For many children, the guardian
is no longer a person in their minds who is looking after their
needs, and I think that is critical.
Q213 Mrs Grant:
Still on this matter, what is a manageable caseload in your opinion?
I have seen figures of 12, 25 and 35. Obviously there are different
experiences, but generally what is your view?
Harry Fletcher:
I did discuss with Anthony Douglas this week the comment he is
alleged to have made about a benchmark of 35 per practitioner.
He said, no, no, he has been misinterpreted. What he meant was
that, if the workload continues to increase at the rate at which
it is happening now, then it will not be long before 35 is the
norm. You are absolutely right that, in 2005-2006, for care cases
it would have been 12 to 15, and for separation and divorces slightly
more, maybe 15 to 18. My understanding now is that the average
mixed caseload would be around 20 to 25 and rising.
I agree absolutely with Judith and Judith. If the
number of cases continues to rise, and those cases are as complex
as ever or more complex than before, and assuming the number of
days in a week stays the same at seven, then the impact on staff
is bound to be sickness, stress levels, people leaving and inevitably
corners being cut. Staff already tell me that they regularly work
most evenings and some are forced to do paperwork at the weekend.
It is a situation that cannot continue.
Q214 Mrs Grant:
What is manageable? What is reasonable?
Harry Fletcher:
When we had a workload agreement with Cafcass, it was, as I said,
around 12 to 15 for care applications and slightly more for divorce
and separation. We now have private and public mixed. I would
have thought, not wanting to be a hostage to fortune, that it
cannot really be more than 20.
Q215 Mrs Grant:
I am dealing with the next question too, which is headed "Future
of Cafcass". Cafcass has been criticised as an organisation
that is not fit for purpose. This came out of a report on 11 November
from the PAC. What is your view? Has it changed? In some respects
we have covered some of that, but I just wondered what your reaction
to that is. Are there any further matters that you would like
to raise?
Harry Fletcher:
I would just add that I broadly support the recommendations that
were made in the Public Accounts Committee report, although obviously
I don't accept that the staff are not fit for purpose. I have
met with the Chair of that particular Committee, and through the
family courts trade union group, of which Napo and Nagalro are
members, we will be working with the Chair monitoring the implementation
of those recommendations over the next 12 months. I have also
reached an agreement with Anthony Douglas that we will meet him
every three months to, in a sense, try and hold Cafcass to account
on the changes that they are making in response to those recommendations.
I think it is a question I would like to answer again in 12 months.
Q216 Mrs Grant:
I would also like to ask, do you think there has been too much
change?
Harry Fletcher:
It is very simply again what I said earlier. What characterises
Cafcass and Probation over the last decade—the two areas
for which I am responsible—is constant reorganisation and
partly, as a consequence, increasing layers of bureaucracy to
try and monitor those changes.
Judith Timms: May
I add to that and say that it is very concerning? The base of
the concern is that the proportionate model is being embedded
now. What the President's latest agreement of 1 October and the
previous Interim Guidance both have in common is that they were
designed to be temporary. We all agree that it is not the service
one would like to see and it is a "minimum safe standard",
so how do we roll back from that proportionate model and what
are the plans for that? As Harry has said, and I agree, this is
not a sustainable situation. What we have to look at now is almost
to separate out the interests of Cafcass the organisation from
the interests of the service.
You will be aware of the coming together in an Interdisciplinary
Alliance for Children of 22 different organisations who have expressed
concern about the model that was being espoused by Cafcass. What
is very rewarding about the discussions with interdisciplinary
colleagues is that there is a very high degree of consensus about
the need to maintain the integrity of the statutory framework
for children; that actually there is not much wrong with the legislative
framework. The Children Act is good legislation. What we need
to do is to implement it better and we need an organisational
structure which facilitates that rather than inhibits it. These
are very, very difficult questions. The Family Justice Review
is looking at them at the moment. The Interdisciplinary Alliance
for Children is putting forward some proposals for an alternative
model, which would make the best use of the available resources
and which we hope would give us increased capacity.
Dr Freedman: The
problems in appointing guardians obviously have lots of knock-on
effects, but one of them is in the ability of expert witnesses
to work. We have always felt that we worked very closely together
with guardians. The fact that a guardian was in position, was
looking carefully at the instructions that were given to us, was
coming to meet with us at the beginning in professionals' meetings,
shaped the work that we did. Now it is not uncommon that a guardian
is appointed after we have already begun our work. The guardian
will call me up and say, "I think you've been given the wrong
instructions." It is another source of delay and lack of
focus in the work that we are able to do.
Q217 Claire Perry:
I think we have touched on the issue of social workers before,
who clearly could be even more of a resource in the current system.
In earlier evidence there was agreement that perhaps the courts
don't trust the judgment of social workers as much as they could
do. Would you all concur with that? If so, is that an issue of
training or is it simply that we have created something where
we are more reliant on experts than we are on social workers?
Judith Timms: I
think it is an issue to do with training and confidence. If we
had a professional management model—the sort of model that
Eileen Munro is looking at—which facilitates the proper
exercise of professional discretion within a supported, professionally
supervised structure, then you would have a situation where you
have a pool of people who are growing in confidence and reinforcing
each other. That will never obviate the need for the sort of clinical
expertise that we have heard about today, but there is a crisis
of confidence not just amongst social workers themselves but amongst
the public as well. The public do need to value social work because
over the last decade, and in fact before that, we have been a
very devalued profession. There are some very positive steps now
which are being made towards recovering that professional territory.
Dr Freedman: I
would echo what Judith has said. My experience in court is that
courts listen very carefully when a good, consistent social worker
files reports. We usually find ourselves in the same general area
of that social worker and I can hear that the judge is as well.
The problem is that the majority of the cases that I am involved
in don't go through with just one social worker. Families complain
about this. Families come to talk to us and say, "We're on
our fifth social worker. How are we supposed to have any confidence
in them?" The structure is really working against social
workers. We have to be honest that there are social workers who
are not well trained and who are not very good at doing their
jobs. They are really in distinction to the very good, consistent
social workers. It used to be the case that you could reckon that
if you were working with a particular local authority you would
have good social workers; another local authority, maybe next
door, wouldn't. It is now pandemic in my experience.
Q218 Chair:
There is a demoralising effect, because when anything ever goes
wrong the press want to blame social workers each and every time.
When they get it right we never hear a thing about it, do we,
to be fair?
Claire Perry: Mr Fletcher,
would you like to comment?
Harry Fletcher:
Yes. As far as Cafcass is concerned, the comments that I have
received from family court judges, from the creation of Cafcass
onwards, have generally been fairly positive about the role that
practitioners play in courts. I certainly agree that they have
been more problematic since the surge in casework post-November
2008.
In terms of local authority social workers, I could
sit here all night talking about the image of social work. I have
given evidence to Munro and to Moira Gibb's review of social work.
One thing I would say is that in the case of Baby P there wasn't
any organisation that was able to contextualise what was going
on in Haringey on the ground at that time, which is a role I have
in respect of when the press come to blame Probation for something
going wrong. That was the substance of the evidence that I gave
to Munro in the social work review. There needs to be a body to
try and redress the balance. Hopefully, the social work college,
if it can be independent of Government, might fulfil that role.
Chair: On behalf of the
Committee can I thank you, Dr Freedman, Ms Timms and Mr Fletcher,
for giving us your time and for the evidence that you have given?
We very much appreciate the fact that we have had a few insights
today which undoubtedly will be reflected in the report when we
eventually report to Government. We are very grateful to you.
Thank you very much indeed.
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