Operation of the Family Courts - Justice Committee Contents

Written evidence from the Association of Lawyers for Children (FC 24)



The Association of Lawyers for Children ["ALC"] is a national association of lawyers working in the field of children law. It has over 1,200 members, mainly solicitors and family law barristers who represent children, parents and other adult parties, or local authorities. Other legal practitioners and academics are also members. Its Executive Committee members are drawn from a wide range of experienced practitioners practising in different areas of the country. Several leading members are specialists with over 20 years experience in children law, including local government legal services. Many have written books and articles and lectured about aspects of children's law, and several hold judicial office. The ALC exists to promote access to justice for children and young people within the legal system in England and Wales in the following ways:

  • (i)  lobbying in favour of establishing properly funded legal mechanisms to enable all children and young people to have access to justice;
  • (ii)  lobbying against the diminution of such mechanisms;
  • (iii)  providing high quality legal training, focusing on the needs of lawyers and non-lawyers concerned with cases relating to the welfare, health and development of children;
  • (iv)   providing a forum for the exchange of information and views involving the development of the law in relation to children and young people; and
  • (v)  being a reference point for members of the profession, Governmental organisations and pressure groups interested in children law and practice. The ALC is automatically a stakeholder in respect of all government consultations pertaining to law and practice in the field of children law.

A.2  CAFCASS is considered at pages 3 to 9. In our submission we contrast the delivery of a service to children in public law cases before CAFCASS took over responsibility with the position as it has developed under CAFCASS's stewardship, and we call for radical and urgent reform of the way in which the services provided by Children's Guardians in particular are delivered.

A.3  CHANGES TO LEGAL AID are considered at pages 10 to 18. The bulk of our submission addresses the contracting changes proposed by the 2010 bid round, which of course, at the time this submission is lodged is the subject of a pending application for judicial review. We contrast the willingness of the Legal Services Commission to enter into detailed discussion over drastic changes to the fees structure (which eventually resulted in broad consensus) with their failure to enter into any such discussion about the tender criteria (which has resulted in an outcome viewed in all quarters of the family justice system as potentially disastrous).

A.4  ALTERNATIVE DISPUTE RESOLUTION is considered at pages 19 to 20. We emphasise that such services require to be properly funded if they are to be effective, and that a high degree of skill and experience are essential attributes of the professionals involved if such initiatives are to work.

A.5  CONFIDENTIALITY AND OPENNESS IN FAMILY COURTS is considered at pages 21 to 28. We draw attention to the fact that, in constructing the new rules and legislation, the views of children and young people were ignored, and that the current legislation raises substantial problems and concerns (including compliance with the UN Convention on the Rights of the Child) while leaving the media even less clear than before as to what can be reported. We call for a proper and detailed consultation on these issues.

(i)  The effect of Cafcass's operations on court proceedings, and the impact on the courts of the sponsorship of Cafcass by the Department of Education

1.1  The ALC has addressed these issues in correspondence this year with OFSTED (as the body inspecting CAFCASS) and with the National Audit Office (in connection with their report dated 28/7/10 on Cafcass' response to increased demand for its services) and we submit, as supplementary material:

  • (i)  letter to Ofsted dated 21/1/10; and
  • (ii)  letter to the National Audit Office dated 28/5/10.

We draw attention in these documents to the ways in which CAFCASS's priorities have been skewed by the agenda of their sponsoring department and the inspection regime to which they have become subject.

1.2  The core functions of CAFCASS are to give children an independent voice in legal proceedings, and to advise and assist the court in achieving the best possible outcome for them. In public law cases, they must also ensure that children are protected against poor social work practice and decision-making. Whilst the difficulties in obtaining timely CAFCASS reports in private law cases are also severe, this submission focuses primarily on the chronic failure of CAFCASS to offer adequate representation to the abused and neglected children who are the subject of care proceedings.

1.3  CAFCASS's hierarchical management culture, combined with its hostility to the independence and status of the Children's Guardian, have had a disastrous effect on the representation of these children. From its inception, CAFCASS has reduced the professional standards, capacity and morale of the pre-existing service, one which its own chief executive now refers to as "the Golden Age". Although one of the principal aims of government in establishing CAFCASS was to produce savings through a unified and managed service, CAFCASS now costs more than twice as much to run as the 3 services which preceded it- currently £138 million in 2009/2010 as opposed to £66.5 million in 1998. Adjusted for inflation (approximately 34% from 1998-2010), this represents a cost increase in real terms of 66%.

1.4  CAFCASS blames its failures on a surge in demand for public law and private law reports. In fact, the demand for public law guardians now is no higher now than it was in 1997-1998.[26]


1.5  The three services which offered investigation, representation and advice to the court in children's cases were the court welfare service (private law : investigating and reporting function), the guardian panels (public law including adoption: child representation, investigation and reporting), and the Official Solicitor (child representation, investigation and reporting in complex, mainly High Court proceedings). The combined annual costs of these services in England for 1997-1998 were estimated by government to be £66.5 million.[27]

1.6  In 1998, Guardians were appointed in about 13,300 cases, of which about 4,400 (33%) were adoption proceedings. The remainder (about 8,900 cases) were Children Act specified (public law) proceedings[28]. In 2009-2010, CAFCASS statistics show that public law requests for guardians were 8,684. In 1997, the Family Court Welfare Service, operated by the Probation Service, undertook about 36,100 reports per year[29]. In 2008-9 CAFCASS received 38,449 requests for private law reports (CAFCASS Annual Report, July 2009 page 17). Thus, demand for public and private law reports and services is broadly similar to that in 1997-1998.

1.7  As at March 1998, there were an estimated 1,011 guardian panel memberships in England. Some individual guardians were double-counted as they belonged to more than one panel. Of this total, 843 (approx. 80%) were self-employed. About 70 persons in England and Wales were designated panel managers, supported by 92 clerical and administrative staff[30] The total budget for the guardian service was £26.193 million, of which £18.5 million (70%) was spent on guardians' salaries, fees and expenses[31]. Waiting lists were rare and were easily absorbed by guardians from neighbouring panels.

1.8  Guardians were highly qualified and experienced: "One characteristic of most of the current practitioners is the length and breadth of their expertise in family, child and court-related areas, linked to formal academic qualifications."[32]

1.9  It was common ground that the guardians offered a very high level of service to the children and the courts: "The current service provided by the Family Court Welfare, Guardians ad Litem and the Official Solicitor's Office are highly regarded by the courts and many other agencies with whom they have contact. This is also evidenced by inspection reports of the Family Court Welfare and the Guardian Services. That professionalism is recognised and valued. It needs to be sustained and where possible enhanced." [33] "The role of the guardian ad litem in particular is widely regarded as one of the major success stories of the Children Act." [34]


1.10  Even before its inception in 2001, CAFCASS was opposed to the use of self-employed guardians, and the guardians' professional association, the National Association of Guardians ad Litem and Reporting Officers (NAGALRO) successfully sought judicial review of CAFCASS on this issue. Nonetheless, the opposition to the use of self-employed guardians continued. In 2003, the House of Commons Select Committee observed that "the increase in demand- which did not start post-Cafcass and should have been anticipated- and the shortage of appropriately qualified staff, made it all the more important that CAFCASS held on to the staff it was inheriting. The protracted dispute [with self-employed guardians] damaged relations with experienced guardians and staff that the organisation desperately needed in order properly to fulfil one of its core functions….It is important that, as well as using and developing its employed guardians, CAFCASS senior management embrace the principle of a mixed economy and repair relations with self-employed guardians." [35]. This advice was ignored. In 2009, despite increasing waiting lists, CAFCASS issued a directive that no further cases would be allocated to self-employed guardians. By March 2010, the number of self-employed guardians had reduced to 311.

1.11  The most recent CAFCASS Annual Report (July 2009) shows an annual budget of £130 million. Almost half of CAFCASS employees (908 out of 2,083, or 44%) are non-practitioners. Although CAFCASS asserts that about 60% of its budget goes to remuneration of "front-line staff", this includes all regional staff, managers, administrative staff and practitioners in both public and private law (known collectively as "Family Court Advisors" or FCAs). No separate figures are published for the fees and salaries of practitioners, but, given the high proportion of non-practitioner staff, it is safe to assume that the proportion of the total annual budget spent on their remuneration is less than 50%. This represents in our view a major misdirection of public money towards a growing and unnecessary bureaucracy, at the expense of the children that CAFCASS is meant to represent.

1.12  Many of the most experienced self-employed guardians have been forced out of the service or have taken early retirement, so that hundreds of years of experience have been lost to the family courts. In March 2010, the number of self-employed guardians in England remaining was 311, compared to a total of 1140 employed FCAs. Entry level qualifications for guardians have been reduced to 3 years' post qualifying experience and CAFCASS proposes to reduce them even further, so that newly qualified social workers with no experience will be able to be employed by CAFCASS. Further, CAFCASS plans to extend the use of unqualified family support workers to carry out some of the tasks of the guardian.

1.13  CAFCASS now officially defines a case as "allocated" when it is "either a case substantively allocated to a named practitioner or a case allocated on a duty basis to a named Cafcass practitioner" (CAFCASS Annual report page 27). Employed guardians have now been allocated so many cases that many feel they are unable to offer even a minimum service to the children they represent. Workload agreements in 2004 envisaged about 12 cases per employed guardian. According to the National Association of Probation Officers ( NAPO), employed practitioners are now carrying an average of 25 cases. In some cases, their case loads far exceed this figure. This places the guardian in an invidious position, as the statutory duty to investigate and report in each case is placed squarely on his shoulders. Anxiety is very high and morale is very low. The number of employed guardians leaving the service is increasing, and NAPO report staff turnover rates of between 20 and 30 % in some areas.


1.14  A national survey of its members by NAGALRO[36] found that 40% of care cases in the survey sample had been unallocated for more than two months, including 10 % for over three months. 2 % were unallocated for more than 5 months. In early autumn 2009, a conservative estimate was that there were over 860 cases awaiting allocation in the offices from which the participants reported.

1.15  Guardians were concerned about the limitations of the "advisory" or "duty guardian" role, particularly about the quality of advice that could be offered to the court, and the dangers posed to the child by an "arm's length" process of risk assessment[37]. There is also lack of continuity for the child. Over 80% of respondents said that they were being instructed by Cafcass managers to prioritise tasks other than the work done with and for the child. This is echoed by reports that managers in some areas are instructing guardians not to make home visits and to interview families by telephone.

1.16  The lack of opportunity for the guardian critically to appraise and, if necessary, challenge the local authority's actions and arrangements for the child at an early stage was another major area of concern:

"Some of the case examples in the survey indicate that the local authority case was being accepted uncritically, raising the fear that the wrong decisions may have been made and the options for the child not fully explored. If too much time elapses between the child's removal from home and the final placement decision, then the outcomes may be determined through the passage of time rather than on the original facts of the case". [38]

1.17  CAFCASS's current operational target is to offer a purported "safe minimum service" in all public law cases. NAGALRO's response is as follows:

"The concerns raised by respondents in relation to the fettering of their professional discretion are indicative of the gap which is opening up between the organisational target of the "safe minimum standard" of service delivery and the statutory duty of the children's guardians under the Children Act 1989- to give paramount consideration to the child's best interests. Practitioners are rightly concerned that the present systems may put them in breach of either their professional codes of practice or their statutory duty. The concept of a "safe minimum" is essentially a subjective rather than an absolute concept, dependent on different local and managerial definitions. This has resulted in considerable confusion and anxiety for front-line staff concerned about potentially dangerous practice……The case examples given by the survey respondents vividly illustrated the anxiety and stress experienced by practitioners who are all too acutely aware of the vulnerability of hundreds of children who are waiting for a guardian". [39]

1.18  The ALC supports and adopts these observations. It also supports the radical reform of the delivery of guardian services to children and to the courts. It goes without saying that these are the most vulnerable group of children in our society. Many of them have suffered grave harm. They need independent representation by high-calibre guardians. It is clear from the comparatively modest cost of the previous services that a return to the standards which existed pre-CAFCASS is not a pipe dream or a "Golden Age". It is an affordable, do-able alternative to an organisation which spends less than half its annual budget on the salaries and fees of public and private law practitioners, and prioritises bureaucratic tasks above direct, investigative work with children and their families. The good will, dedication and expertise of the existing guardians can be harnessed to offer a high quality service to the child and to the court. A service which protects and respects the role and professionalism of the guardians would also be able to attract and retain high calibre new recruits from the social work profession.

(ii)  The impact on court proceedings and access to justice of recent and proposed changes to legal aid

2.1  By "recent and proposed changes to legal aid" we understand the Select Committee to refer to:

  • (A)  Part 1 of the family fee changes, effective October 2007;
  • (B)  Part 2 of the family fee changes, due to come into effect in October 2010;
  • (C)  the contracting changes proposed by the 2010 bid round; and
  • (D)  other changes to the scope of funding to be introduced in October 2010 as a result of the 2010 contracts consultation, eg the capping of independent social work fees.

We deal with these in turn:

(a)  Part 1 of the family fee changes, effective October 2007

2.2  Our members' principal complaint was that these changes failed properly to remunerate solicitors who did their own advocacy for time spent (sometimes many hours) in preparing for hearings.[40] Following considerable and productive discussions with the LSC this issue will be remedied shortly, when the Part 2 fee scheme comes into force.

2.3  In terms both of access to justice and the impact on court proceedings, there is clear evidence from our membership that the quality of parent/other adult party representation (i.e. work other than advocacy) in care proceedings has declined since the introduction of fixed fees for case preparation. That fee is, on the face of it, quite substantial[41]. There has been a noticeable increase in the number of parents who are not being adequately represented, and there is a strong suspicion amongst our membership that commercial decisions have been taken to move into this market on the basis of corners being cut and a minimal service provided. This indeed is market forces at work!

2.4  There are anomalies in the scheme where a client transfers instructions to another solicitor. These could be for a wide range of reasons, including conflict of interest, the client acting in such a way as to require the solicitor to withdraw from the case, the solicitor ceasing practice or being subject to an intervention. Restrictions on the second solicitor's remuneration makes taking on such cases financially unviable. This has an impact both on access to justice and the court process.

(b)  Part 2 of the family fee changes, due to come into effect in October 2010

2.5  Broadly we consider that these changes will result in improved quality of advocacy and will have a positive impact on court proceedings. By offering reasonable remuneration for complex work they will encourage providers to continue to offer publicly funded services in this field, and they can be expected to have a positive impact also on access to justice.

2.6  We would like to highlight that this scheme was developed as a result of detailed and lengthy discussions between representative bodies and the LSC over many months. It is clear evidence that such constructive engagement is possible, in stark contrast, unfortunately, to the history of the contracting changes, below.

(c)  The contracting changes proposed by the 2010 bid round

2.7  For public law work, the results of the family bid round are, at present, disastrous - both in terms of future access to justice and future quality of work. There are many parts of the country where provision will plainly be inadequate, and large numbers of highly experienced and very well-regarded children panel solicitors who have been excluded from taking on work under the new contract.[42]

2.8  It is clearly of the utmost importance to understand how this has come about. Our limited understanding of how the process developed (which includes no knowledge at all of crucial elements such as the Legal Services Commission's planning processes and decision making) is as follows.

2.9  By the final report stage of his review of Legal aid Procurement, published in July 2006, Lord Carter's brief had been extended to family law. Published simultaneously with his report was a consultation paper from the Legal Services Commission and Department for Constitutional Affairs "Legal Aid: a sustainable future". Our association's response is annexed[43]

2.10  At a meeting of the Civil Contracts Consultative Group held on 27/1/09 it was clearly articulated as being the policy of the Ministry of Justice that smaller providers should be eliminated from the 2010 bid round[44]. Some months later, in their Consultation Response, the LSC confined themselves to observing that "We would stress that five providers per procurement area will be a minimum rather than a target and that in the majority of areas we would anticipate letting more contracts than this"[45].

2.11  In a letter dated 14/1/10 to the Law Society, Carolyn Regan (then Chief Executive Officer of the Legal Services Commission) stated that there was no intention to make significant cuts in the supplier base. She repeated that assurance to one of the signatories of this submission on 18/1/10, at a meeting of the National Family Justice Board. She envisaged that, as a result of the tender process, a few providers might drop out and a few new players might come on board, but that broadly the supplier base would remain as it had been.

2.12  We know from the Magee report[46] that there were considerable tensions between the policy departments of the Ministry of Justice and Legal Services Commission[47]. We also know that the Ministry of Justice "won"[48].

How then were the criteria formulated on the basis of which a substantial cut in the supplier basis was indeed achieved?

2.13  Annex A to the LSC's Consultation Response to the Civil Bids Round for 2010 contracts consultation, which was published in June 2009, set out on page 1 a summary of the minimum entry requirements for Family work. This sets out a number of requirements, including:

  • minimum numbers of NMS, and the requirement to provide service at all levels;
  • a quality standards which required a satisfactory peer review rating, the LSC's "Specialist Quality Mark" standard or equivalent; and
  • supervision requirements limited to "supervisor standard in family" - that is to say (coupled with the requirement that there be a minimum of one supervisor to each [full-time equivalent] caseworkers, one person who satisfied the Specialist Quality Mark supervision standard for a firm with 1-6 fee earners, and an additional supervisor if the firm had 7-12 fee earners, etc.

2.14  Significantly, at this stage there was no requirement[49] for any specific panel memberships, over and above the standard requirement that a supervisor be a member of one of a number of accredited panels operated by The Law Society[50] and Resolution.

2.15  There was no consultation with the ALC, and none that we are aware of with other representative bodies subsequently in the eight months between the Consultation Response and the opening of the tender as to any further requirements, beyond those set out in Annex A, page 1, or how particular requirements were to be scored. The LSC were asked for further details[51] but were unwilling to enter into any discussion as to their plans, only indicating the publication dates they were working towards. We do not know what the reasons were for not consulting in detail. Whatever the reasons, the results have been disastrous. Had there been proper consultation on the criteria which were finally adopted by the LSC and the scoring system, those criteria would almost certainly have been substantially modified.[52]

2.17  Once firms' bids had been "scored", matters were then aggravated by the LSC's system of allocation. This was a "cascade" system, in which those firms with the highest score were allotted all the matter starts they had bid for, irrespective of the relationship between that number and the firm's track record of case starts. Provided there were five providers in each procurement area, if those top five scorers had bid for more than, or the precise amount of available matter starts between them, then no further bids were considered or contracts let. This was a "winner takes all" approach, which inevitably encouraged overbidding.

2.18  No consideration was given to the proportion of a firm's work which was devoted to "matter starts" (ie legal help) as opposed to court work (certificated work). This took no account of the fact that, in public law children's cases, the work done under a matter start may only constitute 1 or 2% of the work done altogether, and that there is no matter start at all in cases where a provider acts on behalf of a child.

2.19  There was no requirement that staff at a particular office fulfil the criteria that the LSC devised. This enabled firms to make multiple bids in different contract areas, and effectively "knock out" long established firms with highly qualified and experienced staff, who failed to score sufficient points to be considered under the cascade system.

2.20  It is beyond the scope of this brief submission to go into details of the many anomalies thrown up by this ill-conceived tick-box tender, but they include:

  • contracts going to firms which fortuitously had an employee who had qualified on one of the domestic violence panels before the announcement that this would attract specific points (enabling them to score the maximum 40 points) despite the fact that other firms had undoubted expertise in that area which they could have evidenced in other ways, if the tender form had allowed anything other than the ticking of boxes, and far greater depth and experience in other areas of practice than the "successful" firms;
  • contracts being awarded on the basis of speculative bids rather than track record/ability to deliver services without the need to recruit;
  • no account being taken of the fact that a firm might have several highly experienced panel solicitors (over and above the minimum number of panel members required for supervision purposes); and
  • highly experienced children panel solicitors, many with 20 years or more practice in representing both children and parents,[53] practising in metropolitan areas which have the greatest level of social deprivation and accordingly the bulk of public law cases, and held in high regard by the courts where they practice, being unable to qualify for a contract because of the automatic classification of such areas as Integrated Services A areas.

2.21  In summary, the peculiarities of the scoring criteria, coupled with the LSC's policies on cascading, and awarding contracts to do work across the board purely on the basis on New Matter Starts, produced unexpected, irrational and disastrous results.

(d)  Other changes to the scope of funding to be introduced in October 2010 as a result of the 2010 contracts consultation

2.23  The ALC's main concern in this area is the decision to cap fees of Independent Social Workers, with effect from October 2010. We strongly opposed this proposal at the time of the Consultation[54] and remain strongly opposed. We understand fully the need for a review of experts' fees generally, but consideration of Independent Social Workers should have been included, with other expert's fees, in the remit of the Ministry of Justice's Central working Group on experts' fees.

2.24  In practice the LSC are already attempting to cap fees in advance of October 2010, and have, ahead of implementation, resiled from the policy in place since 2003[55]. The results have already been felt, with a number of very well regarded ISW's declining to accept further instructions and we have no doubt that this unwelcome change will impact seriously both upon the court process and upon access to justice.

2.25  We would support this decision being rescinded, with decisions over Independent Social Workers fees being included in the remit of the Central Working Group.

(iii)  The role, operation and resourcing of mediation and other methods in resolving matters before they reach court

Private Child Law

3.1  Mediation has been urged as an alternative to court proceedings for several years, particularly by the LSC, on the basis that it is a cheaper option. In practice this has not been borne out. Various schemes have failed due to lack of take up. Costs have been commensurate with court proceedings. Mediation is a very useful way of deflecting cases from the courts, and can lead to significantly better outcomes in certain circumstances but it is not necessarily cheaper. Mediation services need to be properly funded. The lack of available legal advice in the most common family mediation models can lead to a duplication of work, although this is more of a problem with financial mediation rather than children issues.

3.2  Collaborative law (where the parties agree not to go to court, but to resolve their differences in 4 way meetings with their lawyers) has some advantages over mediation in that the parties have access to legal advice. The model of being able to call on the services of family consultants and child consultants to assist with the process can be particularly helpful. The involvement of lawyers and other experts can, however, mean that collaborative law is not always affordable for all who would benefit from it.

3.3  Early neutral evaluation, where a jointly instructed expert lawyer provides a neutral opinion as to an appropriate resolution, or likely court order can frequently avert court proceedings and can be very cost effective.

3.4  Conciliation has historically been successfully employed by CAFCASS officers as a way of resolving matters without further proceedings. This seems to be being used less now that extensive risk assessments are required prior to meeting the parents.

3.5  Programmes of information sharing for parents in private law cases with a view to reaching settlement through conciliation (or any other method) appear to be successful. When these require to be resourced centrally, rather than by individual legal fees, they have not been employed as extensively as they might have been. Separated Parents Information Programmes (PIPs) are steadily taking off. Such schemes do seem to reduce the number of child cases coming before the courts and, by making parents aware of the damage conflict causes children, limit animosity and encourage healthy resolution without the need for contested proceedings.

Public Child Law

3.6  The need to protect children and the inequality of bargaining power when a child's welfare is seriously at risk does make mediation and collaborative law difficult to use within public law. Studies and pilot schemes to promote mediation have not resulted in any significant role for mediation within public law. Collaborative law, precluding as it does court proceedings, does not give children the protection they need.

3.7  However, the use of family group conferencing, pre-proceedings conferences, advocates meetings and a more inquisitorial system enables professionals (lawyers, social workers and guardians) to utilise mediation and collaborative law skills to the benefit of parents and children. The multi-party nature of public law proceedings also tends to foster a more collaborative approach to problem solving in public law cases.

3.8  However, if these alternative methods are to work effectively, experienced lawyers (representing all parties) and experienced guardians and social workers are essential.

(iv)  Confidentiality and openness in family courts, including the impact of the recent changes in the children, schools and families act 2010. 4.1


4.1  Changes to the Rules in April 2009 permitting the media to attend family hearings[56], coupled with the provisions of Part 2 of the Children Schools and Families Act 2010[57] aimed to increase reporting and public awareness of the work of family courts - thus addressing any failing of confidence in this field.

4.2  Various claims have been made about the benefits of press attendance and reporting of family hearings. In brief, those in favour of media access in private law cases (predominantly fathers - albeit a relatively small group) argued courts were biased in favour of mothers, while those in favour of media access in public law hearings argued local authorities have removed children unfairly.

4.3  The latter group (along with some journalists) have also been critical of the work of certain experts. In addition, some parents argued that the rules restricting on "onward disclosure" of court papers denied them an opportunity to discuss their cases with others from whom they might be offered support. Campaigning groups depicted family courts as "secret", arguing judges and experts are unaccountable for their views and decisions.[58]

4.4  Those opposed to media access to hearings argued children's hearings were not "secret" but necessarily private. Children and many children's organisations argued children would be able to be identified from press reporting - even if names were not published. There was however an acknowledgment that more information about the system and the decision making process should be more easily available to the general public but that this information could not be achieved through the mechanism of press reporting - given other concerns and complexities.

4.5  Major concerns of children's organisations focused on the impact on children and their unwillingness to disclosure abuse and discuss wishes and feelings, and on family courts, in terms of increased delay and cost.

4.6  A further concern was that the media would only be interested in reporting sensational and salacious aspects of cases; the media are a commercial enterprise and this type of information sold newspapers/increased viewer ratings. People's rights to privacy about the most intimate details of their family life would thereby be infringed, and some of society's most vulnerable children would suffer further harm and risk through public exposure of intimate details of parents' disputes and failures leading to neglect and maltreatment. Children would be identifiable in local communities and would suffer further.

4.7  It was also argued that restricting attendance and reporting in family cases facilitates full and frank disclosure from parties and thus early settlement of cases. In cases of domestic violence and forced marriages women would be reluctant to seek the protection of the court if told of the potential for press attendance at a hearing in which painful and difficult information has to be shared.

Evidence from other jurisdictions

4.8  Most of these issues have been rehearsed in other similar common law jurisdictions.[59]

4.9  It is noteworthy that allegations about "secrecy", family courts as a "star chamber" and judicial bias against fathers continue in these jurisdictions despite for example the fact that the Federal Family Court of Australia has been open to the press (and the public) for well over 20 years.

4.10  Other jurisdictions have accordingly sought different ways of enabling the public to have access to better and more detailed information about modern family courts and how judges make difficult decisions about the care of children.

Changes to family court rules (April 2009) and Part 2, Children Schools and Families Act 2010

4.11  Many who support increased media access and reporting of children cases and those who opposed Part 2 of the Act, argue that in practice, the provisions are largely unworkable.

4.12  Both groups argue that, if implemented, Part 2 of the Act will result in adjournments,[60] increased costs and delay. For the family justice system this would occur at a time when the system is already close to meltdown.

4.13  Journalists argue that they are now[61] even more unclear about what information they can report. Editors remain unclear about what may be published and will not risk limited resources sending out reporters to cover cases where media resources may become tied up in applications to resolve this.

4.14  The Act is thus unlikely to meet the needs of either group or the policy objectives set out by the (then Labour) Government. It will, however, have substantial resource implications.

4.15  For children's lawyers and others the implications are even more complex.[62]

4.16  The ALC (along with some 22 key children's groups making up the Interdisciplinary Children's Alliance) is concerned that the legislation will not be sufficient to protect the welfare and safety of children. This is a key concern not only for children's lawyers but also for social workers and doctors. The legislation undermines key ethical principles underscoring work with children.[63]

4.17  Welfare, legal and clinical practitioners have all argued that information about media attendance in court will affect the willingness of children and young people to disclose/discuss further serious abuse and neglect by a parent/carer, and their own wishes and feelings with professionals - and will further undermine their trust in adults and family courts to protect them.

The views of children and young people

4.18  The above concerns were substantiated in recent research with children and young people.

4.19  An independent study of 51 children and young people with regard to press access to family courts[64] found almost all children and young people[65] were opposed to the decision to permit reporters into family court hearings. The major reason was that court hearings address issues that are "private". They concern events that are painful, embarrassing and humiliating for children and an overwhelming majority said this detail was not the business of newspapers or the general public.

4.20  Almost all children interviewed (96%) said once children are told a reporter might be in court they will be unwilling/less willing to talk to a clinician about ill-treatment or disputes about their care, or about their wishes and feelings.

4.21  These findings indicate substantial problems[66] and raise a range of concerns regarding compliance with Article 12 of the UN Convention on the Rights of the Child and General Comment 12 (conditions for the realisation of rights for children under Article 12).

4.22  The research data indicates that, in the construction of new rules and legislation regarding media access and reporting in children cases, crucial elements were ignored - the views of children and young people, their concerns about privacy, safety and self esteem, and the ethnical and practical impact of new provisions.

4.23  At the point at which children feel most vulnerable and powerless it is not perhaps surprising to learn that the research indicates they may in effect "vote with their feet", "play safe, and say nothing". That may expose children to further abuse and places professionals and family court judges in an untenable situation.

4.24  In the light of these findings careful, more detailed, less rushed and a proper consultation needs to be undertaken and alternative options that increase information about the work of family courts - in a format that is user friendly - but which does not expose already vulnerable and often damaged children to further risks. Foremost in this is the need to provide anonymised judgments. A pilot scheme has begun[67] and this is to be welcomed. It is however very early days and we await the evaluation report, which is essential before moving forward in this area of family justice.

26   see further paragraph 1.5 below. The number of public law cases requiring a guardian in 1998 was 8,900; in 2009-2010 it was 8,684. In 1997, the number of private law welfare reports was 36,100. In 2009-2010, the number of private law requests received by CAFCASS was 38,449. Back

27   "Support Services in Family Proceedings: Future Organisation of Court Welfare Services" DOH, Home Office and LCD consultation paper, July 1998, paragraph 5.1 Back

28   ibid; para. 1.25 Back

29   Ibid. para. 1.14 Back

30   ibid. paras 1.24 and 1.25. Back

31   ibid. para. 5.6 Back

32   Ibid. para 3.28 Back

33   Ibid. para 1.6 Back

34   Ibid. para 4.4  Back

35   Report of the Select Committee, paras 8 and 11 Back

36   Time for Children" January 2010 Back

37   Ibid. para 1.2 Back

38   Ibid. para 1.2 Back

39   Ibid. para 1.7 Back

40   An absence of proper statistical information resulted in all solicitors, whether or not they did advocacy, receiving payment for preparation for advocacy as part of the standard preparation fee. Back

41   It varies between £2,621 and £5,966 depending on which region of the country and which tier of court. Back

42   The Law Society commenced an application for Judicial Review of this process on 27th August 2010. A group of 12 existing providers who had been refused family contracts were given permission by Irwin J. to intervene, on 3rd September 2010. The full hearing of the application for judicial review is listed for 21st September 2010, with judgment expected to be delivered on 24th September 2010. Back

43   Lord Carter's Independent Review of Legal Aid Procurement. Legal Aid : A sustainable future. Submission of the Association of Lawyers for Children 12th October 2006. Back

44   This emerged in the context of a discussion about consortia, and whether family practitioners would be permitted to form them. The MoJ were only prepared to consider consortia in the field of social welfare law, on the basis that they were satisfied with their impact assessments in the family law field and were not interested in contracting with small family practices. Back

45   Civil Bid Rounds for 2010 Contracts :A consultation response June 2009, paragraph 4.3 Back

46   "Review of Legal Aid Delivery and governance" by Sir Ian Magee CB, March 2010  Back

47   See paragraphs 197 to 201 Back

48   Although Magee envisaged that there would be "further consideration of the case for an Executive Agency to replace the LSC" (final paragraph of Part 6 - recommendations) the Ministry of Justice not only immediately announced that the LSC would be moved to an Executive Agency of the MoJ, but stated, in a press release of 3/3/10 that "This change will be effective from Monday 8 March 2010" (notwithstanding the need for primary legislation to give effect to such change!) Back

49   The LSC had originally proposed that bidders for public law contracts would require to have a supervisor who was a member of the Children Panel. This was a requirement that the ALC supported for the reasons set out at paragraph 2.3 above, in order to raise quality of representation for parents, and help to prevent delay in proceedings. In fact the LSC decided not to do this. They explained their reasoning at para. 390 of their Consultation Response, as follows:
"However, following consideration of the impacts, particularly on those public law children providers that specialise in the representation of parents and therefore may not sit on the Children Panel (our emphasis) we are not proceeding with this proposal".
The ALC (and also the Family Justice Council) queried this with the LSC and it rapidly became apparent that the LSC did not appreciate that membership of the Children Panel (formerly the Child Care panel established in 1985, and so in existence for 24 years at the time of the Consultation Response) was not limited to solicitors representing children. There is a level of qualification as a parent's representative, and a higher level of qualification as a children's representative, but most panel solicitors choose to qualify at the higher level so that they can include representation of children in their caseload. The LSC had apparently enquired of the SRA (who had been administering the Children Panel at the time of the consultation), were told that there were very few parents representatives, and so jumped to the conclusion that they would not be able to include panel membership as a requirement! 

50   The Children Panel was administered by the SRA between 2007 and July 2009, when it returned to the Law Society, who had administered it between 1985 and 2007. Back

51   E.g.at meetings of the Civil Contracts Consultative Group (28/7/09) and Family Representative Body Meeting (13/11/09) Back

52   The original proposals of the LSC for the Family Advocacy Scheme were considered by representative bodies to be disastrous in terms of their impact both on access to justice and the workings of the courts, and, as referred to at paragraphs 2.5 and 2.6 above, was radically transformed as a result of subsequent, detailed discussions and negotiations. Back

53   See footnote 10 to paragraph 2.14 above  Back

54   Paragraph 68 of our response, dated 27th March 2009, to the Legal Services Commission's Consultation on Family Legal Aid Funding from 2010, responding to Question 68 of that consultation. Back

55   LSC's Information Pack - Public Funding Issues (October 2003) esp. paragraph 7.4 : "…the Commission will … follow the directions given by the court where it has given leave for an expert to undertake certain, specified work …In the circumstances, the Commission wishes to discourage applications for prior authority …" Back

56   unless otherwise directed by the judge Back

57   to facilitate reporting of family cases and the naming of experts Back

58   Brophy J with Roberts C (2009) Openness and transparency in family courts: - other jurisdictions and messages for reforms in England and Wales, Briefing Paper No 5, Dept. of Social Policy and Social Work, University of Oxford. Back

59   . eg family courts of Canada and Australia and more recently, New Zealand. See, Brophy with Roberts (2009) - see note 33 above.  Back

60   while judges determine on a case-by-case basis what information can be reported from children cases in order to safeguard their interests Back

61   Following the Children Schools and Families Act 2010. The Act sets out information that if published, will be deemed "identification" information and thus a breach of confidentiality; it also sets out "sensitive personal information" which if published would also be in breach of the Act. Despite the fact that the government did not set out an evidence base and did not consult on this latter provision, the Act allows - all other things being equal - for the restriction on publishing "sensitive personal information" to be lifted at a future date.  Back

62   They have to explain to children and young people that (post April 2009) (a) a reporter might be in court and subject to the judge's agreement may be permitted to remain, and, (b) what information the reporter should and should not report. They cannot of course guarantee anonymity in any subsequent reporting - nor can they necessarily second-guess the outcome of an application by the press to publish certain information "in the public interest". Back

63   This point was made in evidence at Committee stage of the Bill by children's organisations, childcare lawyers, judges and the Royal College of Paediatrics and Child Health. All argued that when talking to children who are deemed able to understand, professionals have to explain that the media may be in court. And it may be in the child's interests for the professional to advise them not to say anything further in the light of possible attendance and press reporting.  Back

64   Brophy J (2010) Media access to family courts: views of children and young people. London: Office of the Children's Commissioner for Children - England Back

65   79% in the public law sample, 91% in the private law group Back

66   Where children and young people are unwilling/unable to talk about what has happened to them, judges/magistrates may be faced with making difficult and often life changing decisions about a child in the absence of, or with incomplete, "sanitised" or changed evidence from the child, and limited or no information from clinicians. Children and young people said clinicians must inform them about press access to hearings at the start of an assessment interview - and before any substantive issues are addressed. This will enable young people to make informed choices about whether/how to proceed; they said any other approach would be dishonest and a betrayal of children's trust.
With regard to what information from cases and judgments might be published, children felt much information about them (their age, schools, interests and activities, religion, etc.) and about the content of cases (the allegations and concerns) by their very nature would allow for the identification of families. Crucially they are unconvinced that formal rules prohibiting publication of identifying information will automatically protect them. They do not trust reporters, they felt information would get out, allowing them to be identified, shamed and bullied.
Most children questioned about a sample judgment said children would not be happy for any information in the judgment to be reported in newspapers (79% in the public law group and 91% the private law sample). A minority of children in the public law group felt some information from a judgment could be published but without exception these children selected statements vindicating children of blame or responsibility for events leading to care proceedings: they wanted it known that they were not "bad" or "naughty" children and that they had done their best in awful circumstances.
With regard to whether there was any information in the judgment that it might be helpful for the general public to know, most children (and 91% in the private law group) said "no" - and some were doubtful or cynical of a public education role on the part of newspapers.
The views of children/young people regarding their privacy and implications for their safety and welfare in their schools, homes and communities (notwithstanding respect for private and family life under Article 8 of the ECHR) - is thus somewhat different to that articulated by some adults and policy makers in government.
Young people also said judges/magistrates should seek the views of relevant children before deciding whether to admit the press to a hearing. This view - coupled with children's rights to be heard in any judicial and administrative proceedings (under Article 12, UNCRC) indicates welfare and legal representatives must seek their views in preparation for a hearing.
Objections to parents talking to the press about a case (even though children should not be identified in reporting) were strongest in the private law group: 92% objected to this during proceedings, 45% still objected once proceedings were concluded (and those who though parents could then perhaps be permitted to talk to the press, added conditions including seeking the agreement of the child concerned).
In the public law group 37% said parents should not be permitted to talk to the press during or after cases were completed; following completion, 41% felt parents could - but also added further conditions. And almost all young people (96%) said where children are capable of expressing an opinion parents should seek their permission before talking to the press.
Children and young people said the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will "cherry pick" information. They are mostly doubtful that the press will print a truthful story and are doubtful - some cynical - about an educational function.
Children fear "exposure"; they are afraid that personal, painful and humiliating information will "get out" and they will be embarrassed, ashamed and bullied at school, in neighbourhoods and communities. This expectation is not limited to children in rural communities; it is equally likely in urban communities and is particularly relevant for children within ethnic minority communities. As indicated in evidence by children's organisation and clinicians during the Committee stage of the Bill, children are unconvinced about the capacity of laws and adults to protect them.
Some saw a role for public education in dispelling myths that children involved in care proceedings and those in long-term foster care are somehow "at fault" but they did not generally think these issues could or should be addressed by reporting from real cases where the focus was on details that might put children at risk.
Most children and young people said newspapers should not be permitted to name professionals - unless a professional agreed. As to whether there might be a public interest in doing this, most rejected that view - they said there were other ways to achieve this.
Respondents were also strongly opposed to reporters having access to reports for courts (96% in the private law group). They said this would be a breach of their trust and privacy.  

67   The Family Court Information Pilot (pilot courts being Leeds (FPC), Cardiff (CC and FPC) and Wolverhampton (CC and FPC) will provide anonymised judgments, these to be placed on dedicated space in the British and Irish Legal Information Institute (BAILII) website - see http://www.le.ac.uk/li/digital/BritishandIrishLegalInformationInstitute Back

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© Parliamentary copyright 2011
Prepared 14 July 2011