Written evidence from the National Association
of Child Contact Centres (FC 25)
NACCC is a registered charity and the umbrella organisation
for 350 child contact services offering supervised and/or supported
contact. These services form an integral part of the family justice
system and have protocols with the judiciary, family lawyers and
CAFCASS. Many of the services are commissioned, have contracts
with or are grant aided by CAFCASS.
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. A recent directory of legal terms developed
by the Cumbria Family Justice Council for court users with a learning
disability defined CAFCASS as "an (sic) service which is
not part of the courts, social services, education and health
authorities that looks after the interests of children involved
in family court cases and provides information and advice to the
Judge, families and children in Court proceedings".
2. The role of CAFCASS is therefore invaluable
to provide expert evidence to the Court based solely on the welfare
of the children rather than the interests of the parents or the
various state institutions. Adequately and flexibly funded and
staffed it was beginning to achieve these aims.
3. In recent years the lack of sufficient funding,
the increase in the breadth of its workload with the addition
of major safeguarding responsibilities coinciding with the demoralising
effects of repeatedly negative OFSTED inspections and a huge and
unforeseen surge in both public and private law applications has
led to a major turnover in staff and an unsustainable increase
in officers' workloads. In the recent past this has led to a major
backlog in new cases being dealt with, officers being unavailable
to attend court hearings and court meetings. This, combined with
the exchange of experienced staff for newly appointed workers
unfamiliar with the nuances of family court workings or the particular
problems of private law contact disputes, has had a negative impact
on the trust of the judiciary in the organisation and caused very
serious delays in an already overstretched system.
4. Practitioners have been particularly exasperated
by the major backlogs leading to delay which all in the family
justice system recognise as not only being very detrimental to
the best interests of children but also in many cases being positively
harmful. This is at a time when well respected supervised services
have been unable, due to Legal Aid Fund changes, to use their
proven expertise in providing expert reports to the courts and
current contracted "matter starts" already proving inadequate
for the ever increasing demand.
5. When Legal Aid was removed from Supervised
contact assessments it was on the basis that this was the role
of CAFCASS. However CAFCASS funding was not increased to cover
the shortfall experienced by the services and they have stood
idle, closed and/or lost experienced practitioners out of the
family justice system whilst the CAFCASS officers have been buried
in unallocated files and children have suffered excessive delay.
6. It is difficult to really know whether the
placing of CAFCASS within the Department of Education and its
predecessor departments has had a detrimental effect. It certainly
would have been a "bigger fish" had it been sponsored
by the Ministry of Justice and it is possible that the Legal Services
Commission may have had a better understanding of its operations
and their complementing rather than duplication or competition
by contact service providers, but this must always be speculation.
ii) THE IMPACT
ON COURT
PROCEEDINGS AND
ACCESS TO
JUSTICE OF
RECENT AND
PROPOSED CHANGES
TO LEGAL
AID
1. Please note the responses to question 1 contained
in paragraphs 4 and 5 concerning the delays introduced into the
system by the withdrawal of legal aid from supervised contact
reports at a time their numbers were increasing and when CAFCASS
lacked the man power to deal with them or the finance to contract
them out.
2. Every increase in legal aid thresholds leading
to a reduction in those qualifying results in an increase in litigants
in person (LIPs) which inevitably means longer court hearings
and therefore delay. Judges have to spend extra time ensuring
that the unrepresented parties understand the proceedings and
are helped to complete the correct forms and documents. Timetables
set out to aid the parties are rarely complied with and LIPs lack
the detachment and experience to drop untenable, weak or irrelevant
arguments and to accept unpalatable decisions rather than pursuing
doomed appeals leading to delay, increased costs and frustration
for the represented party as well as the judge which may of itself
hinder compromise.
3. The failure to increase the rate of legal
aid for over a decade has led to the steady erosion of experienced
family lawyers for many years. The new family law contracts are
leading to more closures of family practices and more matters
being dealt with by paralegals. Families are now faced with having
to change solicitors and travel great distances to find representation,
thus reducing choice. All of this has a negative effect which
runs right through the family justice system. Family law is not
a mathematical formula; each case depends on the character and
circumstances of each party and the dynamics of fractured and
damaged families. Knowing how these can affect the instructions
they receive, knowing which agencies exist to help and how to
access them appropriately can ultimately save the court huge amounts
of time in avoiding repeated hearings and appeals as they tackle
the root causes of the disputes rather than the symptoms.
iii) The Role, Operation and Resourcing of
Mediation and Other Methods in Resolving Matters Before They Reach
Court
1. As has been stated earlier family disputes
are rarely straightforward and easily resolved by court intervention.
In a contact dispute for instance, mum's alleging of dad's inexperience
with and consequent inability to be left alone with their child
may actually arise from other factors: her jealousy at dad having
a new partner; his failure to provide adequate maintenance; her
desire to cut all links in order to form a new family unit with
a new partner ; the new partner's jealous and controlling nature
None of these are easily dealt with within an adversarial court
system but rather require the involvement of mediation, therapy
for adults and children, provision of contact centres to build
trust and form or strengthen relationships etc The latter are
as vital as the courts in achieving life changes to better improve
the lot of children, but their existence is increasingly precarious
reliant on the whims of government fashion, the generosity of
funders who often favour short-term, new and novel over the tried
and tested. This can cause mission drift and the wasting of skills
and expertise as contracts are won and lost and funding streams
change.Thus, established efficient services are jeopardised.
2. The family justice system is creaking and
has been for years, with much more demanded of far fewer staff.
Cases which ten years ago would have been dealt with by high court
judges are now considered by magistrates; straightforward contact
disputes never now come to court yet the numbers themselves continue
to increase and much of the external provision is provided by
the voluntary sector and by volunteers heavily reliant on a reducing
number of funders.
iv) CONFIDENTIALITY
AND OPENNESS
IN FAMILY
COURTS, INCLUDING
THE IMPACT
OF THE
RECENT CHANGES
IN THE
CHILDREN, SCHOOLS
AND FAMILIES
ACT 2010
3. Family courts deal in matters which are extremely
personal. Parties are emotional and often say and do things which
in hindsight perhaps many years later they would regret. The children
are the innocent victims caught in the middle and often used as
an excuse for vitriol poured out by the parties in private law
cases and the inadequacy of the parties in public law cases. Today"s
news remains for ever on the web, accessible long after the harm
of the proceedings themselves should have healed. This may jeopardise
the honesty of parties. It may be seen that this causes additional
harm to the emotional well-being of children. On the other hand,
NACCC is able to see the advantages to parties of transparency
in some instances. NACCC does not have a specific stance on this
issue .
September 2010
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