Operation of the Family Courts - Justice Committee Contents

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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