Operation of the Family Courts - Justice Committee Contents


Written evidence from the National Youth Advocacy (FC 33)

OPERATION OF THE FAMILY COURTS

EXECUTIVE SUMMARY

NYAS is appointed by the courts to act as Guardian ad Litem and we support and represent children and young people experiencing the unhappiness and uncertainty of family breakdown. In our view that there are a number of significant factors which impact on the operation of the family courts:

  • Delay in new appointments of Guardians.
  • Backlogs of cases.
  • Lack of welfare representation/information to the courts.
  • Unsafe risk assessment/reduced focus on the child.
  • Impacts on Court decision making in the best interest of the children.
  • Lack of continuity in case management for children.
  • Restrictions and difficulties in implementing the new LSC children contracts.
  • Funding gap created by two government departments working separately creating an urgent need for interdepartmental cooperation in order to allow NYAS to deliver seamless and effective services for children.
  • The interpretation of scope of LSC funding in relation to welfare consideration is seriously restricted.
  • There is no formal recognition of the benefit of NYAS tandem model for children and families nor of our independence from CAFCASS.
  • Concerns remain about the scope and implementation of the contract and the work funded under R 9.5 appointment.
  • There is a need to recognise social workers with considerable experience in child care practice in the main group of experts.
  • Restricted funding on the number of litigants in person and impact on funded service providers and the courts.
  • Funding for use of mediation, parenting classes, contact centres needs to be prioritised.
  • Transparency in the courts must demonstrate respect for the privacy of young people.
  • Increased information about the court system for service users would improve confidence.

The National Youth Advocacy Service (NYAS) is a unique "not for profit" young person's charity delivering specialist legal services and court representation for children and young people. NYAS is appointed by the courts to act as Guardian ad Litem and we support and represent children and young people experiencing the unhappiness and uncertainty of family breakdown. We offer seamless socio-legal advice, information, signposting, independent visiting and advocacy services.

(i)  THE EFFECT OF CAFCASS' OPERATIONS ON COURT PROCEEDINGS, AND THE IMPACT ON THE COURTS OF THE SPONSORSHIP OF CAFCASS BY THE DEPARTMENT OF EDUCATION

The effect on court proceedings

  • Delay in new appointments of Guardians.
  • Backlogs of old cases.
  • Lack of representation/information to the courts.
  • Unsafe risk assessment/reduced focus on the child.
  • Impacts on Court decision making in the best interest of the children.
  • Lack of continuity for children and case management.

1.  Most of our referrals are entrenched and complex cases to which CAFCASS are unable to respond to or have been unsuccessful after lengthy involvement. NYAS addresses the vacuum in CAFCASS service provision and achieves successful results with those entrenched cases where CAFCASS has failed or the relationship with the family has broken down.

2.  A number of referrals result from administrative delays by CAFCASS. Their inability to appoint Children's Guardians causes significant delay and wasted court time with a damaging impact on the children caught between two warring parents. At practitioner level NYAS enjoys good partnership working with CAFCASS, but despite the CAFCASS/NYAS protocol, we have been frustrated by the lack of collaborative working at a senior management level. It is our view that a strategic and collaborative approach to the response to complex cases would make better use of our joint skills and available resources.

3.  As a result of the "Baby P" case, the NAO found that CAFCASS was "not well placed to respond efficiently and effectively with this unexpected increase because it had not solved problems with IT systems and information management". NYAS has developed an effective and responsive case management system which could provide significant cost benefit and address some of these difficulties.

4.  Interim Practice Guidance published on 30 July 2009 (Practice Guidance: Interim Guidance to Assist CAFCASS [2009] 2 FLR 1407), by the President of the Family Division recognised the difficulties and the impact of the growing backlog. The Guidance introduced temporary measures to deal with backlogs of cases in both public and private law proceedings. The impact of the changes include the use of duty guardian systems with the resulting risk to continuity of case management.

5.  Operational priorities introduced by CAFCASS and designed to address the problems of unallocated cases and lengthening filing times in effect diluted the role of the Guardian, with inadequate risk assessments for vulnerable children, reduced continuity for children and increased their time in care, and provided limited information to the courts which remained uncertain about when a permanent Guardian would be appointed. Caseloads for CAFCASS staff have increased to an unmanageable level in some areas, and staff report concern about the risk of making the wrong recommendations because of the lack of information and the pressure to respond quickly.

The impact on the courts of the sponsorship by the DoE

6.  NYAS welcomed the Justice Committee report published in July 2009 recommending that the LSC move away from the departmental funding silos which fail to identify children as stakeholders in services and to prioritise the need for children trapped in some of the most intractable and complex cases to come before the family courts. NYAS lobbied to ensure that children were not treated as adult clients and that recognition was given to their specialist needs. NYAS called upon the LSC and the government to change its approach to support the provision of child centred services to engage in constructive discussions with NYAS about the future shape of children's legal services. However, despite the welcome decision by the LSC to let contracts for specialist children's services, there has been no discussion about children's special needs in relation to service provision and key providers in the voluntary sector have been excluded from strategic discussion and decision making.

7.  There has been a consistent drive to separate funding responsibility between the MOJ/LSC which funds legal services and the DCSF/DoE, which has responsibility for CAFCASS and welfare input. There is a funding gap created by government departments working separately, this seriously impacts on the availability of crucial welfare related information available for the courts. The welfare issues and associated necessary activities, which are clearly identified in the Children Act 1989, as an essential part of the Court's decision making process, are currently threatened as both departments wish to limit their responsibility. The scope of funding is constantly changing and the responsibilities of each department remain in dispute. There is a need to bring together financial responsibility for the work necessary to ensure representation and reporting to the court, based on the welfare checklist. It is our experience that a thorough and focussed approach to welfare issues particularly in the most complex cases, results in faster long term resolution of the case and effective court decision making. NYAS is concerned at the hidden cost of constant wrangling over who should pay for this important work which NYAS has demonstrated provides long term cost savings to the public purse.

8.  The departmental funding split has resulted in NYAS being forced into the mould of a high street law firm and there is no acknowledgement of the work of Not for profit agencies.. All our funding comes from the LSC/MOJ. There is no formal recognition of the benefit of our tandem model for children and families nor of our independence from CAFCASS. The impact on the courts is to limit the scope of our remit to act and thus to fetter judicial decision making. NYAS' unique combination of children's social work and legal services do not fit readily into the LSC specification. The ever changing limitations of "scope", imposed by the LSC on NYAS, impact on our ability to assist the court in effective decision making.

9.  There is an urgent need for interdepartmental cooperation in order to allow us to deliver seamless and effective services for children so that their best interests are properly represented to the courts. NYAS put forward a proposal for the MOJ/LSC and the DoE/CAFCASS to establish a funding route from current budgets, as recommended by the Family Justice Council, to ensure the continuation of independent services for the most vulnerable children embroiled in family law proceedings. This could be achieved through an interdepartmental agreement to provide cash limited and ring fenced money from the two departments for the legal and social work input to the most complex children cases in private law. We recognise the pressing need to make the best use of the resources available, and it is vital that constructive dialogue between the DoE/CAFCASS, and other interdisciplinary stakeholder organisations is facilitated so as to produce results which are both less dangerous for children and more cost effective than seeking to legitimise the minimum standards of service delivery currently offered by CAFCASS.

(ii)  THE IMPACT ON COURT PROCEEDINGS AND ACCESS TO JUSTICE OF RECENT AND PROPOSED CHANGES TO LEGAL AID

  • Concerns remain about access to justice for children to address their particular needs - contract criteria, and new matter starts.
  • Specialist children's service contracts have made some concessions to children by their creation, but remain subject to same criteria as for adult services.
  • Concerns remain about the scope of the contract and the work funded under R 9.5 appointment.
  • We are concerned that social workers with considerable experience in child care practice are not included in the main group of experts.
  • We recognise the need to reduce public expenditure and are concerned about the frequency and timing of consultations which do not involve genuine dialogue with expert providers.
  • Recent changes in the start date for new contracts will seriously impact on access to justice for children and young people.
  • The changes in limits for qualification for a funding certificate, has increased the number of Litigants in Person with a notable impact on the capacity of service providers and the courts.

10.  The announcement by the LSC of a children only contract was a positive acknowledgement that the commission had listened to NYAS about the provision of services for this group of clients. However, whilst we will be able to continue to carry out certificated work for children, the administrative burden on specialist children providers required in the contract specification, with a limit of 25 new matter starts, will restrict children's access to justice.

11.  We are disappointed that there has been no collaboration with us or consideration of children's specific needs, in the design of these new contracts and reflected in terminology and paperwork which will deter children and young people from accessing legal services. Specialist children's contracts have the same criteria as adult services.

12.  There remain concerns about the scope of the contract and the work funded under R 9.5 appointment. This effectively fetters the discretion of the judiciary to direct the work that is necessary to ensure the full consideration of the welfare issues which are the paramount consideration of the court in Children Act matters.

13.  We are concerned that social workers with considerable experience in child care practice are not included in the main group of experts. There remains the need to value and retain this social work expertise. They are treated as a separate group with a separately capped hourly rate (CAFCASS rates). We feel they should be treated as all other experts, with a consistent approach to reward across all expert disciplines. We are aware that LSC propose to revisit the issue of independent social work and consider this to be the responsibility of the DoE/CAFCASS. (Please see comments included under "The impact on the courts of the sponsorship by the DoE" in question 1).

14.  We recognise the need to reduce public expenditure and are concerned about the frequency and timing of consultations which do not involve genuine dialogue with expert providers. There is a need to overhaul communication between government departments and to have open discussion with voluntary agencies providing specialist services in order to ensure the best access to justice for vulnerable children and young people.

15.  A result of proceedings issued by the Law Society against the LSC there will be significant disruption to the family justice system and potential harm to the children needing legal advice. The delay in start up of all new contracts is a significant additional burden to NYAS, as we have staff and offices in place in preparation for the delivery of new specialist services. These are unfunded pending the start of the new contracts placing financial pressure on the charity.

16.  The number of Litigants in Person has increased following changes in limits for qualification for a funding certificate, with a notable impact on the capacity of service providers and the courts. The lack of understanding of court processes and the lack of legal advice results in unrealistic expectations of children's representatives, and protracted proceedings. This further increases delay and cost to public purse. This causes a lack of confidence in the system on the part of litigants, and has contributed to public and misguided campaigning, of which, NYAS has direct experience. Children involved in the proceedings experience further trauma and uncertainty.

(iii)  THE ROLE, OPERATION AND RESOURCING OF MEDIATION AND OTHER METHODS IN RESOLVING MATTERS BEFORE THEY REACH COURT

17.  Mediation diverts cases from the courts; however there is a need to ensure this is adequately funded, and that training is more readily available. Compulsion is unlikely to produce commitment to the process and therefore reduces effectiveness. There is a lack of fairness for clients seeking public funding who are required to attend if they are to receive a certificate. Children need specific skilled and separate support and representation during the mediation process.

18.  It is our experience in even the most intractable cases, that where a Guardian works with parents to fully understand the best interests of their child/ren parents are more ready to reach agreement. Consideration should be given to a pre proceedings child focussed conciliation role. In order to get parents commitment there would be value in this work being done by an independent body.

19.  Parenting classes with a requirement for the production of agreed parenting plans, improve the experience of children whose parents are separating, and help separating parents to overcome the difficulties of parenting when separating or separated. By working in partnership with local services, to establish the impartiality and credibility of the programme the trust of participants can be gained. It is our experience that some of the most entrenched parents, locked in acrimonious dispute, can relinquish their self interest when they are helped to understand the needs and best interests of their child/ren.

20.  NYAS experience of providing a family breakdown service for children and young people, showed that direct access to legal advice, support and representation for them, provides an effective method for early identification of families at risk of breakdown, and a route into discussion and negotiation with parents to divert them from court proceedings and ensure the best arrangements for their children.

21.  Resourcing for parenting activities and support, having been passed to CAFCASS has resulted in a serious reduction in supervised and supported contact provision, with numerous excellent contact services facing closure. Parenting assessment, mediation, conciliation and family breakdown support, (including legal advice for children), should be easily available, and funded by both DoE and MOJ. Effective and accessible early support for families, encouraging them to reach agreement, results in considerable saving to the public purse in the longer term, in particular as it impacts on the numbers of children going into public care, mental health services and the criminal justice system.

(iv)  CONFIDENTIALITY AND OPENNESS IN FAMILY COURTS, INCLUDING THE IMPACT OF THE RECENT CHANGES IN THE CHILDREN, SCHOOLS AND FAMILIES ACT 2010

22.  There has been considerable public interest in the workings and decisions of the family court being open to public scrutiny, and the judiciary have recognised the need to address accusations of secrecy. There has been considerable concern from professionals reporting to the courts, that publishing their identity and their reports would jeopardise what people were prepared to tell them as it would not be confidential, public identification of experts could put them at risk and reduce the number of professional prepared to provide reports.

23.  Children and young people are the most affected and resistant group who have expressed most concern and objection. Sir Mark Potter, former President of the Family Division explained succinctly why children should have their privacy protected (Children Schools and Families Bill Committee, Evidence session 21st January 2009):

24.  "Every child that we are talking about, whether in private or public proceedings, is the entirely involuntary subject of a dispute either between the parents or from alleged improper care by the parents leading to a wrangle — I should say an application by the local authority leading to a wrangle — in the courts. That is why these children deserve to have their privacy protected as a separate matter under article 8 and to be treated as people in their own right, in these days when children's rights are recognised."

25.  The key aims of the recent changes were to improve accountability, to restore public confidence in the family court system, and to protect the interests of children and vulnerable adults.

26.  In reality they were rushed through with such cumbersome and complex drafting that they have resulted in little change. There has been a significant additional burden on judicial case management and greater risk of delay so that children experience further uncertainty and limited parental contact. Much hangs on Schedule 2 of the Act and the definition of "sensitive personal information". There is a particular risk to social workers that their evidence may not be deemed as such.

27.  In contrast to the aim of achieving openness and balanced reporting, the absence of a mechanism to enforce a ban on the publication of sensitive personal information (s21(1)), apart from the usual rules relating to contempt, has resulted in some parents publishing highly sensitive information on the internet and risking the identification of the child and key participants concerned, without any possibility of redress.

28.  It is NYAS' view that in order to achieve both confidentiality and transparency it would be better to improve the information for the public about court proceedings, and increase the number of open days, so that they can gain an understanding of procedures. Publication of anonymised judgments would go some way to addressing public interest concerns.

September 2010



 
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