Operation of the Family Courts - Justice Committee Contents


Written evidence from Jane Dambe, Chief Executive, National Family Mediation (FC 22)

THE OPERATION OF THE FAMILY COURTS

EXECUTIVE SUMMARY

  • I endorse the submissions of my professional bodies: Nagalro and BASW.
  • Summary of recent examples of the deteriorating environment in the South East of England and its effect on the delivery of services to children by employed and independent social workers.
  • Erosion of the rule of law and protection afforded by the Human Rights Act. Individuals cannot be expected to work in the knowledge that they are failing to meet the requirements placed on them by existing legislation.
  • Causes of delay and waste in the legal system as it affects children.
  • Evidence base for decision making questioned. Having considered challenging the LSC's legitimacy in setting a single fee for ISW services, professional bodies declined to proceed with JR. The LSC has stated it prefers negotiation yet remains with a unilateral approach. This restrictive practice represents an abuse of its monopoly, is anti-competitive and will encourage abuse and a reduction in the value for money of publicly funded legal services.

BACKGROUND

1.  I am an independent social worker. I have over 39 years' experience as a social worker in a range of environments, and as an ISW and Children's Guardian since 1984. I am an approved Cafcass SEC in three service areas in the South East. I have provided Expert Witness reports and given evidence in court proceedings in a range of cases, both in public and private law, adoption and special guardianship applications. In the last 12 months I have provided some 6 expert assessments, including investigations in Spain and South Africa. I am routinely appointed by separate legal practices, local authority legal services and private individuals in all cases on the basis of my cv and longstanding record of providing accurate evidence at a fair and reasonable price. My motivation is, and always has been, the best possible outcome for the children I meet and ultimately work for. I am a basic rate tax payer and have no other source of income.

2.  As an ISW and SEC I regularly meet with, and discuss professional issues with, a broad range of colleagues. Any discussions we have, whether between legal professionals or social workers, are usually unfettered by managerial or organisational constraints. In the past 3-6 months I have witnessed increasing frustration with the legal system and the workloads imposed. I have personally been pressured to place cost in front of quality. In the last week as a Children's Guardian I had to face an accusation in cross examination that I have not given the father the time he felt I should have given him, making him think I had dismissed his case on insufficient evidence. I have the option, as self-employed, to walk away from such coercion, while employed colleagues do not. As a result, in the past few months, I am personally aware of highly qualified colleagues recently electing to change jobs, and take significant salary cuts, in order to escape top down refusal of management to accept front line worker protest - effectively bullying. I know of local authority social workers having similarly elected non-career moves. As one would expect, independent colleagues also have the option to walk away from the profession, particularly as they approach retirement. Employed colleagues have been instructed not to respond to this review.

3.  Preventing the erosion of the rule of law is an easy excuse to demand retaining the status quo. However, this is taking place on a daily basis. Care plans are modified to take account of lack of resources, under instruction from management. Professionals have told me that they are routinely handed cases without the capacity to deal with them. I know of employed workers who currently have in excess of 20 and 30 cases allocated to them. It was agreed historically that 14 public law cases was the maximum that could be effectively dealt with and a manager admitted that allocating a high number of cases to employed colleagues is a method of reducing unallocated cases and is a method of curtailing work by overloaded practitioners. These allocations take place irrespective of whether they agree to them or not. In short, illegally, since they have stated they cannot deal with them appropriately.

4.  Reduction in the amount of time allocated to each case at ground level results in incomplete evidence being available to the decision making court and judges being unable to complete cases within allotted time spans, returning issues back down the line for further assessment. The delay, thus caused, not the fee levels of ISWs, compounds to further cost and further delay. Allocating a case to a worker who does not have the capacity to work on the case results in the worker suffering undue and unavoidable stress and delay in any work on the case. In short, box ticking for its own sake. The published desire to deal with court delay through arbitration and mediation is a pipe dream, based on hope, not reality, as the current law does not allow for it. In seeking to achieve the best outcome for children, will professionals be required to play the system until the law is changed? And can the law be changed without being referred to the European courts?

5.  As a Guardian ad Litem, pre-2001, I spent the majority of my working life dealing with complicated public law cases. I was able to do this from the perspective of being a parent - in my view an invaluable toolkit in understanding the needs of a child - and as an independent social work professional whose next case (job) depended on the quality of my work (peer and panel reviewed annually) and the outcomes I could achieve for children, routinely in the most adverse of circumstances. Following the judicial review of Cafcass in 2001, exactly 9 years ago today, I was told to continue my work and establish my independence through diversifying into a broad spectrum of self-employment, commensurate with the goals of the Children Act - to be a champion for the child. None of what I have done in the past 9 years has been motivated by profit or undue financial reward. However, further reductions in funding, specifically in the field of public law, and a one-fee-fits-all approach will recruit a host of problems, reduce the number of experienced practitioners willing to take on this challenging work and remove the existing capacity of fee setters to negotiate lower rates or fixed price contracts. It will no longer be viable for me to take instructions on cases which involve working outside of the South East area, let alone the UK, whereas family break up increasingly evidences parties leaving their immediate geographical area. There is a risk of a brain drain of the most experienced practitioners and an influx of less experienced "experts" willing to take the work on at the lower rate proposed which does not take into account the on costs of being self employed or the real cost of employment normally met by employers.

CONCLUSION

6.  The Family Justice system is overloaded and, in the area of public law, under funded. Specifically, at a time of highest demand, and within the framework of current law, there is no case for cutting resources available to deal with this overstretched sector. Until the law is changed, requiring front line social workers to ignore their statutory duty is illegal.

7.  There is no evidence-based case for a unilateral imposed, fixed fee approach to funding of independent social workers and their expert contributions to court proceedings. Within a market economy, it is inconsistent to propose such restrictions on earnings capability, since the result will inevitably impoverish the access of the market sector to suitably qualified labour.

September 2010



 
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Prepared 14 July 2011