Written evidence from Gill King &
Michael Griffith-Jones (FC 10)
SUMMARY
1. This evidence is directed to the first
part of the first term of reference the Committee has issued:
The effect of CAFCASS's operations on court proceedings. We refer
only to public law.
2. Cafcass's operations over recent years
have effectively excluded many children from their own proceedings,
generally diminished the centrality of the child in proceedings,
introduced discontinuity of support for children in proceedings,
and increased delay in the decision making for many children.
INTRODUCTION OF
WITNESSES
3. We have, between us, some 74 years experience
in social work, almost all focussed on child care and child protection.
4. Within that period, we have some 43 years
experience as Guardians; 15 of these under Cafcass.
5. Although we each were promoted as managers
early in our careers, we each subsequently decided to continue
as practitioners.
6. In common with many experienced colleagues,
we have now both ceased working as Guardians because we believe
Cafcass was not putting children first, but instead devoting its
energies to its own needs as an organisation. (As recent evidence
of this: "Douglas [Cafcass chief executive] also stressed
the importance of retaining Cafcass once the family justice review
had concluded. He said the organisation carries out an important
"public defender" role, ensuring checks and balances
are applied to the court process." Children and Young People
Now, 13 July 2010).
7. Our experience is mostly in the sphere
of public law, and we limit our evidence to that area.
INTRODUCTION TO
EVIDENCE
8. Since Michael Griffith-Jones wrote last
December, the situation of children subject of care proceedings
has markedly worsened.
9. The LSC decision to withdraw legal aid
contracts from some of the most skilled and child centred lawyers
will mean that children (and sometimes their family members),
will no longer have access to the previously available standard
of legal support at such a stressful time. We have no doubt that
good child centred legal representation of all parties can serve
to reduce hostility between the parties and increase the chance
of beneficial outcomes for the child. Others will no doubt give
more specific evidence on this point.
10. Cafcass senior management continues to say
it is meeting the needs of children, citing figures for allocation,
duty attendance and reduced waiting lists. However, anecdotal
evidence from judges, magistrates and lawyers does not bear this
out; nor does the experience of independent reviewing officers
or child protection conference chairs, where children have had
no effective Guardian during proceedings.
11. A recent hearing of the General Social Care
Council conduct committee found that the facts of the case it
was considering (brought by Cafcass) found Cafcass had put a dishonest
spin when stating figures about allocation of cases.
12. The National Audit Office has produced a
recent report which is highly critical of Cafcass management in
its failure to provide timely support for children in proceedings.
13. The President of the Family Division has
said the duty guardian scheme has not succeeded (Family Law 12
August 2010).
SUBMISSION
14. The reason Guardians were introduced in the
1976 legislation was to ensure that individual children had one
independent person who could get to know her and ensure her wishes
and feelings were known to the court and that her interests could
be safeguarded through any proceedings.
15. This is the public law responsibility Cafcass
took over from the GALRO Panels in 2001.
16. Instead of doing this, Cafcass has introduced
a series of measures which have had the effect of undermining
the service to children. Using triage, duty systems, agency workers,
unqualified workers, allocating cases to managers and giving 'watching
briefs' to officers does not help individual children as envisaged
in the original legislation and the subsequent 1989 Children Act.
It is impossible to identify how any individual child has been
helped by these policies. (This is not to belittle the support
offered to children by individual Cafcass officers, often working
in spite of their management.) See also, specifically, the section
headed "failures in service provision" in the attached
letter of December 2009.
17. Cafcass has repeatedly failed to appreciate
the need for children to have full party status and independent
representation of their interests in court proceedings which fundamentally
effect their lives. During the drafting of the Public Law Outline,
Cafcass did not press for children to be represented at the increasingly
significant pre-proceedings stage of proceedings, whilst adult
parties, including the local authority, are represented.
In initiating 'duty guardian systems', Cafcass made the court
at first instance entirely dependent on the evidence local authorities
chose to file, rather than offering any independent investigation.
18. The 2003 Select Committee quoted Cafcass
Corporate plan 2003-6 "Cafcass exists to ensure children
and young people are put first in family proceedings; that their
voices are properly heard; that the decisions made about them
by the courts are in their best interests; and that they and their
families are supported throughout the process." If this were
ever the case, it is no longer so.
19. For example, the chief executive has suggested
children under six need not be seen by Guardians. Any experienced
social worker would say that even non verbal children can demonstrate
their feelings, let alone verbal ones.
20. He has more recently suggested (interview,
Children and Young People Now, 13 July 2010) that in some cases
children do not require either legal or welfare representation,which
raises significant questions about the organization's understanding
of the human rights of children, their party status, and the confusion
and emotional turmoil of children subject to care and related
proceedings.
21. The reality for children is that many children
no longer have their interests properly safeguarded by a Guardian,
because Cafcass does not properly appreciate why a child needs
a Guardian.
22. Courts can no longer rely on independent
child centred welfare advice as was intended in the post Maria
Colwell legislation.
CONCLUSION
23. If the state is to intervene in children's
lives, those children's interests need to be independently assessed
and protected. Therefore a Guardian service needs to exist. That
is not the same as saying Cafcass needs to exist. Cafcass has
repeatedly demonstrated, at great cost, that it does not understand
the needs of the children the Guardian service is meant to safeguard.
24. The positive elements of the pre-Cafcass
systemchild centred independent autonomous professionals
working with children's solicitors, responsible to the courts,
providing a generally high quality and low cost service in a timely
manner, without any costly bureaucracyneed to be reintroduced,
without the major disadvantage of attachment to local authorities.
September 2010
Annex
LETTER SENT TO THE JUSTICE COMMITTEE IN DECEMBER
2009
CAFCASS
I am writing as someone who presented evidence to
your Select Committee in 2003, to express serious concern about
the deteriorating service to children provided by Cafcass, in
the hope that a Select Committee might be able to review the work
of Cafcass and consider a better way forward for children's representation
in public law proceedings.
In July 2003 the House of Commons Select Committee
on the Lord Chancellor's Department, which you chaired, issued
a lengthy critical report on CAFCASS (HC 614), an NDPB set up
in 2001 to provide the courts with support and advice on behalf
of children involved in private and public law proceedings, about
which there had then been a great deal of concern. (As you will
know, government responsibility for CAFCASS has changed a number
of times since 2001; it now lies with the Department for Children,
Schools and Families, and for that reason I am sending a copy
of this letter to Mr Sheerman, chair of that committee.) In respect
of public law there had been a simple flat structure for providing
guardians for children since 1984; although it had flaws, it allowed
professional autonomy and responsibility, maintained high standards,
generally met the needs of the courts, and was a great deal cheaper
than Cafcass.
As someone then with 30 years experience as a social
worker and 20 years as a children's guardian, I was actively involved
in the preparation of NAGALRO's written evidence (Ev 160 &
Ev 244) to the 2003 Select Committee, as well as giving oral evidence
(Ev 31). I stopped taking work from Cafcass, in spite of still
loving the work as a Guardian, about three years ago as it had
become increasingly clear that Cafcass was not putting children
first, but was instead devoting its energies to the needs of the
organisation.
The public concern in 2003 has continued; in the
last year it has intensified, and I hope it is therefore helpful
to review the current position as it applies to public law in
light of some of the recommendations that your Committee made
some six and a half years ago. In the interests of brevity, I
have not provided detailed supporting evidence, but that could
be available should the Committee decide to pursue any enquiry.
Tandem representation (para 52)
- Although Cafcass has continued to state it is
in favour of the tandem model, many of its actions have effectively
undermined it; indeed little of Cafcass' guidance to its workforce
even mentions the existence of the child's solicitor. Duty systems
and discontinuity of guardians (see below) make tandem representation,
with its robust and challenging relationship between guardian
and solicitor, virtually impossible.
- Recent attempts by the DCSF and Cafcass to change
s41 of the CA89, eventually abandoned in light of very considerable
opposition, would have destroyed the model entirely. That it was
even considered demonstrates the lack of real commitment to the
model.
- Although not the responsibility of Cafcass, the
simultaneous restrictions of the civil legal aid budget attack
the model of tandem representation from the other end.
Review by the National Audit Office (para 57)
The NAO did not carry out a review.
Since 2003 there has continued to be a significant
number of early departures of very senior managers, right up to
the present day. These departures have either been because the
wrong individuals had been recruited and had to "be let go",
or because of the introduction of another management structure
- The cost of this to the public purse is not known,
and may be a suitable subject for NAO review.
Research and improving practice
- Just as the work of the Project Team was ignored
by Cafcass in 2001, Cafcass has mostly ignored what was known
to be valuable in Guardian practice. There were a number of research
studies prior to 2000, which are never referred to by senior management
or the Board.
- A better understanding of the role of the Guardian
might have avoided the errors Cafcass has made in pursuing "safeguarding",
the post Climbie term for a whole range of matters, including
child protection, which is the duty of the primary child care
agencies, instead of "safeguarding the interests of the child',
which is the statutory duty of the Guardian (s41, CA 1989).
The "mixed economy" (para 111)
- Virtually nothing effective was done to "embrace
the principle of a mixed economy".
- Although your Committee clearly identified the
benefits of a flexible workforce, with a body of self employed
who did not require payment when there was no work (para 106),
the perhaps surprising response of Cafcass to the current increase
in demand in many parts of the country has been to tell the few
remaining self employed guardians that they would get no more
work. (In its statements, Cafcass continues to count among the
self employed those who have just one or two cases left and who
intend to take no more Cafcass work, which creates a misleading
picture of the "mixed economy".)
- At many times and in many parts of the country
since 2003, even though there have been experienced Guardians
who could have done the work, Cafcass chose instead to recruit
temporary staff without Guardian experience through employment
agencies, thus incurring significant and unnecessary agency fees
- The Cafcass intranet, which is now the almost
exclusive means of organisational communication, is not accessible
to self employed Guardians from their offices
The CAFCASS Board (para 123)
- The Lord Chancellor removed the previous Board
following the publication of your committee's 2003 report.
- It is welcome that subsequently some Board members
have been recruited with considerable knowledge of child care
and some with knowledge of the role of the role of Guardians.
(Of senior management, according to the Cafcass website, only
one of the current 10 Directors and the CE has any experience
as a Guardian, and that only for one year.)
- However, it has been evident that Board members
do not always have information about significant developments.
Board members are also, rather remarkably, excluded from having
access to the Cafcass intranet from their own bases.
- The Board appears to have agreed successive changes
of structure and management with considerable cost implications;
most recently, for example, three directors (who were each were
awarded a 20% increase in pay in 2008-9), were made redundant
in 2009 and yet the Directorate has been increased in size from
6 to 10 in the last year
Failures in service provision
- At no time has Cafcass been able to meet the
KPIs it set for itself for timely case allocation, let alone the
much higher standards set by the GALRO Panels before Cafcass came
into being
- The situation in London has been critical for
some time, with hundreds of children without Guardians, some for
many months. Not only are their proceedings delayed, but some
children never have their voice heard in their own proceedings.
- In most areas Guardians have never been appointed
for emergency hearings, contrary to the Committee's hopes in 2003
of 100% allocation (para 113). This means that children's interests
are not heard at all in such significant applications as Emergency
Protection Orders
- The target of allocation of care proceedings
within 48 hours, as stated by the then chief executive to the
Committee, has never been achieved in most areas. Indeed, Cafcass'
own target is now for just 65% of cases to be allocated in that
time, and it is not even meeting that target in most areas.
- For whatever reason, Cafcass failed to plan for
the inevitable increase in work following the lull after the introduction
of Public Law Outline in 2008, and therefore did not have an appropriate
workforce available with the consequence that children do not
have a guardian to represent their interests for many months,
or, in some cases, at all. Just as your Committee found in 2003
"the increase in demand
.. should have been anticipated",
so it was again in 2009.
- The Cafcass chief executive has recently been
reported (Guardian Society) as blaming over cautious social workers
for "removing children as a precaution, rather than exploring
other solutions", so contributing to the recent increase
in care applications, whilst simultaneously one of his directors
reported (Community Care) that Cafcass research showed that there
were not inappropriate care applications.
- Following a large number of highly critical Ofsted
inspections of Cafcass' standards of practice, Cafcass introduced
a number of bureaucratic measures which resulted in Guardians
spending an increasing proportion of time at their desks, rather
than with children and families establishing necessary information
for the court. This has not only increased the pressures on practitioners,
and reduced the service to children, but can add to the time each
case takes.
- Cafcass has introduced a number of measures so
as to be seen to address the current crisis, including: duty systems
(with implied changes of guardian), intermittent involvement decided
on by managers, the use of unqualified staff to do some of the
work, and management controls of what work Guardians do on a case,
including: restricting the number of visits to children, suggesting
official files concerning the children need not be read and that
interviews can be done on the telephone rather than in person.
- Duty systems result in taking Guardians from
work with and for individual children. All that a duty worker
can do is read the same papers the Court has, and interpret what
is written there. S/he does not see parents or the child or read
any papers not before the court, and does not work with the solicitor
for the child. This gives the appearance of providing a useful
service, whilst doing very little to further the interests of
the child. Indeed, these children would not be aware they had
a guardian.
- For a guardian not be involved throughout the
case risks missing crucial developments in the case, particularly
with the child and her family, which could change the eventual
outcome if acted on at the time.
- Using unqualified staff to do work, such as observing
contact, simply duplicates the failings inherent in much local
authority contact monitoring and supervision. The experience of
long standing Guardians is that only by seeing family contact
for themselves can they gain an accurate picture of what happens
within a family
- Whilst it is obvious that the Guardians should
not do the work of the child's social worker, it is necessary
to build up a relationship of trust in which the child can begin
to make sense of her/his situation and allow the Guardian to establish
what has actually happened, and what the child wants to happen
in the future. This necessitates a number of visits, dictated
by the nature of the child and the circumstances of the proceedings.
- Files often contain a great deal of information
that is not put before the court by the local authority, and it
can be very unwise not to read them, so as to be fully informed
about the child and better able to advise the court.
- Whilst brief telephone conversations can often
be appropriate when one has already seen the person and when there
are no sensitive matters to discuss, it is only by seeing someone
whilst interviewing them that non verbal cues can be observed,
and so a picture better established of what the child may have
experienced.
- Instead of contributing "to reduce delay
across the system" (para 132) Cafcass has significantly increased
the delay in individual children's cases by not allocating a Guardian
when it should have done. Children without a guardian have nobody
to help them understand what is happening at a very frightening
and disturbing time in their lives. In many areas of the country
they experience repeated changes of social worker, for both structural
and staffing reasons, so to have changes of guardian or no guardian
at all compounds their confusion and alienation from the system
that is meant to be helping them.
Dealing with the backlog (Paragraph 134)
- Even during the hiatus caused by the introduction
of the PLO, Cafcass was only able to allocate 78% of cases within
two days.
- There has been the "judicial case management
protocol", followed by the "public law outline"
and more recently the President's "interim guidance"
(followed by different guidance issued by courts across the country),
but in spite of very significant increases in funding, none of
these significant changes in court process has enabled Cafcass
to provide Guardians in a timely fashion. In addition, experienced
Guardians would say that all three measures have, unintentionally,
moved children further and further from the centre of proceedings,
so undermining one of the key roles originally meant for a Guardian.
- As the 2003 Committee wrote, "The only way
in which CAFCASS is truly going to get on top of its service delivery
duties is by dealing with its staff shortage." This it has
not done, instead devoting its increased resources to management
and administration.
Recruitment and workforce planning (Paragraph
139)
- As detailed elsewhere in this letter, this Cafcass
has signally failed to do
Attracting back experienced guardians (Paragraph
140)
- Cafcass has recruited some experienced social
workers as employed guardians, but following your report, did
virtually nothing to attract back experienced guardians who have
left in increasing numbers. (I confess I am one.)
- Indeed, it could be said that holding the fees
for self employed Guardians at the same level for five years whilst
increasing the pay of employed staff and managers, made it clear
that the highly experienced self employed workforce were no longer
required.
Convergence (Paragraph 146)
- The insistence of the second chief executive
that all staff should work across private and public law was sensibly
rescinded by the current chief executive, but sadly this policy
had already had the effect of disillusioning and deskilling some
practitioners, and then others were angered that having adapted
to convergence, they were to revert to doing either private or
public law work..
Performance management (Paragraphs 147,
148 and 149)
- Although Nagalro has repeatedly offered to assist
in this, as has the Association of Lawyers for Children and others,
Cafcass has never drawn on those offers of expertise, instead
introducing a series of internally generated management measures
of performance, which it has then changed many times. This has
served to increase the alienation of practitioners through unnecessary
change and increasing irrelevance, testing the loyalty of staff
to the limit.
Progress in the provision of training (Paragraph
151)
- The current chief executive commented in 2005
that it required a leap of faith in light of the lack of appropriate
training thus far provided by Cafcass, to believe a credible training
programme, such as existed before 2001, would be introduced. Sadly
no effective long term programme has ever been established although
there have been spasmodic welcome attempts.
- The training programmes that GALRO Panel Guardians
enthusiastically participated in, both as trainers and recipients,
have not generally been seen since 2000.
Management and organisation culture
(Paragraphs 170, 171, 172, 173)
- Since 2003 right up to the present, Cafcass has
repeatedly been criticised by the responsible inspection bodies,
which, combined with its continuing inability to carry out its
core function of allocating Guardians to children, means it has
not "become the kind of quality organisation it was originally
intended to be".
- Cafcass has avoided drawing on the expertise
of its Guardian workforce in building up a child centred culture.
- Cafcass has continued to spend money on services
away from the front line service. Expensive guidance has been
produced, such as the "pathways" in 2005, only to be
rescinded subsequently.
- Cafcass has successfully managed to get significant
increases in funding in recent years and yet has still not allocated
cases in a timely manner, whilst expenditure on HQ services has
increased dramatically.
- The corporate national office (HQ) increased
WTE staff in 2008-9 by more than 30% and the salary cost of these
staff increased by 134%; the average salary cost per HQ staff
member (excluding overheads and expenses) in 2008-9 was over £93,083
- Meanwhile the regions, which is where work with
children is based, slightly decreased both WTE staff and
the total salary cost in 2008-9; the average cost per regional
employee in 2008-9 was £42,954, less than half those at head
office
- This has not "demonstrate[d] clearly and
unambiguously that it is putting children and young people first
in all that it does" as the your Committee advocated
- There has been increased expenditure on communication
and HR services (there is now a higher proportion of HR staff
to employed staff than the civil service norm).
- Sadly, although the current CE said initially
he wanted light touch management for autonomous professionals,
there has been no attempt to do this on the ground. Instead management
has attempted to become more involved in determining how work
is done, with employed guardians recently reporting in the media
serious issues of bullying.
Inspection regime (para 182)
- Inspection of Cafcass is now the responsibility
of Ofsted, which has produced a number of highly critical reports.
(There have, however, been reports that Ofsted may not have fully
understood the role of Guardians.)
- Cafcass has responded to these inspection reports
by introducing increasingly bureaucratic procedures for carrying
out the work, to enable simpler measurement and closer management
control, which has resulted in less professional autonomy and
less time for working with children and their networks
Continued Parliamentary scrutiny of CAFCASS's
work (para 183)
- In light of these concerns, I hope that either
the Justice Committee or the Children, Schools and Families Committee
will actively consider looking again at the work of Cafcass and
the sadly reducing service to children.
Reviewing the current situation in light of the findings
of the 2003 Select Committee appears to demonstrate that six years
and many millions of pounds later, few of the lessons have been
learnt by Cafcass. Some children in public law proceedings are
even more often effectively unsupported and unheard when the most
critical decisions about them and their futures are being made.
I hope it may be possible for a full review take
place to look at how a more child centred (and probably cheaper)
structure could be arrived at.
December 2009
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