Operation of the Family Courts - Justice Committee Contents

Written evidence from Gill King & Michael Griffith-Jones (FC 10)


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.


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.


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).


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.


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 system—child 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 bureaucracy—need to be reintroduced, without the major disadvantage of attachment to local authorities.

September 2010




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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