Written evidence from Jas Bains and Joanna
1. From experience we believe that the most appropriate
contribution we can make is in giving a response to question (i).
(i) THE EFFECT
2. It is well recorded the criticism that CAFCASS
does not fulfil its function and has not for best part of the
nine years of its existence. It is clear to many who work within,
or have to use, the justice system that CAFCASS, in its current
format, has not and will not be able to serve and protect, namely
the most vulnerable section of our society, as it should.
3. There is now, and has been since April 2001,
significant delay in the time spent on resolving matters within
the court arena because of the manner CAFCASS operates. We are
aware that delays and problems as being blamed on the after effects
of the "Baby P" case; however we know that this is not
the causing factor. It is the case that due to the high publicity
of that particular case these issues appear to have been discussed
at length recently and "measures" taken to try and address
this; be that by way of extra finances being made available or
by CAFCASS changing how it "works", for example the
"duty Guardian system" to try and provide a "good
enough" service to the Courts and to be seen to be doing
4. Neither of these remedies appear to have had
the desired effect on the delays as these remain high. CAFCASS
management appear to spend an inordinate amount of their time
and finances trying to rationalise and justify the delays, which
in our opinion, cannot be justified in terms of the either the
Children Act 1989, the Human Rights Act 1998 or in fact the UN
Convention on the Rights of the Child. It is unacceptable that
rather than address the issues CAFCASS management appear to use
"spin", be it explanations, apologies, justifications,
minimisations or denials. There have been a number of statements
of priority and intent over the years, but these have never been
achieved. It is the case that the statistics provided by CAFCASS
do not portray the reality of the situation on the ground.
5. We experienced directly the manner in which
the children were represented within the court arena prior to
CAFCASS and the service offered to the courts. It is the case
that most, if not all, cases were allocated within 24/48 hours
of being submitted prior to April 2001. In stating this, our experience
pre CAFCASS, is predominately of public law cases. We are aware
that there were some delays in allocating private law cases within
the Divorce Court Welfare system but not at the current level
6. It is of grave concern to us that on the cases
that we now generally have to report on, the matter has already
been before the court for some considerable period of time, often
years and has involved either a delay in CAFCASS allocation, then
reporting on the case and/or a delay caused by the manner/content
of the CAFCASS report. An example of this is Appendix 1.
7. It is not now usual for the CAFCASS officer
to fail to make a clear recommendation to the court based on any
active professional involvement. We are aware of cases where the
CAFCASS worker has not even seen the children and or the family
before attending court despite having had the case allocated for
weeks. An example is Appendix 2.
8. We are clear that this deficiency should not
be placed on any individual worker but on senior managers and
the systems. From information reported both by individual CAFCASS
officers and by NAPO, it highlights a significantly small proportion
of the finances made available to CAFCASS is actually spent on
direct interactions. The number of staff working at head office
at CAFCASS has more than doubled in the last four years yet as
the head office budget has increased disproportionately; the frontline
staff are struggling to provide a service to the children and
9. CAFCASS appears totally focused on a pathway
that does not act in the best interest of the children and families
it should serve. Despite information being available to suggest
the need for change CAFCASS management have an inability to recognise
this. It is of concern that CAFCASS were unable to accept the
findings of the House of Commons Committee on the Lord Chancellor's
Department, (Third Report of Session 2002-03) Appendix
10. This was echoed by HHJ Longbotham at the
conclusion of the criminal proceedings, instigated and predominately
funded by CAFCASS against Jas Bains, which concluded in May 2005
having heard evidence from senior managers at CAFCASS, including
Lamorna Wooderson, David Moy, Claire McConnell. Appendix 4.
11. In our opinion it is the manner in which
the CAFCASS management operates that leads us to conclude CAFCASS
has regrettably not understood, accepted or reflected on any highlighted
difficulties throughout it's existence. They continue to build
an increasing complex team, whilst the frontline workers are unsupported,
underfunded and a vast number are without sufficient knowledge
to carry out the expected tasks to the high level of expertise
that should be afforded to those who require the services, and
which they were afforded prior to CAFCASS.
12. CAFCASS is a chaotic system which is using
public funds, which are not appropriately spent on the direct
work required. We are aware that there have been inappropriate
use of public funds, for example extravagant team building exercise
for senior managers, plush head office, non economic travel and
accommodation arrangements, inappropriate usage of agency staff.
13. Currently due to the systems at CAFCASS children
are left unrepresented, or represented by a CG who, due to the
restrictions placed on their working methods, for example only
permitted one or two visits to a child and six hours for a private
law case, or are themselves inexperienced to undertake the tasks
expected of them. Prior to CAFCASS CG were required to have five-seven
years post qualification, in 2001 it reduced to five years and
now agency workers or those with as little as one year post qualifying
experience can be appointed. Meaning Courts are not receiving
the quality of reporting that is required to be fully informed
on those they need to protect and therefore are having to instruct
further experts at further expense, meaning the court and the
public purse is paying at least twice for the work required.
14. In addition there is a waste in the contact
centres funded by CAFCASS as these do not provide the courts with
the relevant information and clear recommendations. A high level
fail to provide the basic service required when assessing contact,
such as a report. On many occasions the contact is either aborted,
curtailed or the CAFCASS worker does not attend and their reports
then are inconclusive.
15. The working hours of practically all employed
CAFCASS workers is currently within office hours and does not
reflect those hours of family life; this limitations often means
that assessments are completed through office appointments, so
the family home environment is not assessed and neither are the
extended family members, making the assessments narrow, blinkered
and sterile, which again places further elements of risk on the
16. The previous system of self-employed GALRO
and of having independent social workers enables, thorough assessments
within the home, extended family and the community, and in depth
exploration to occur but also in the case of contact disputes
permits more natural relaxed contacts enabling workers to evaluate
the true nature of the children's relationships with the absent
parent. Most importantly it allows the child to enjoy and relax
within contact in places in their local community.
17. We are in a unique position to identify
trends and developments which would enable a more logical, efficient
and self-sustaining way forward for those vulnerable children
and families but also the courts in their decision making process.
Our focus is, and has always been, the need to provide the best
service for children who are vulnerable for whatever reason. This
does not fit in with our experience of CAFCASS; as within an annual
review of Joanna Rees-Bains it states: "...you are providing
a gold tap service and we can only afford a stainless steel one..."
18. The role of the ISW has developed in childcare;
it offers a solid base on which to ground difficult decisions
posed in Court proceedings. Historically some experienced social
workers have sought opportunities to exercise their skills outside
the confines of L.A departments. Over the last 10 years, due to
the frustrating experiences of self employed CG's working within
CAFCASS, including the limitations and directives on practitioners
and their working practice, it has meant that the true meaning
of "independent advocate" or "voice for the child"
is restricted and therefore can place the very persons the CG
are to protect at risk, as full and in depth investigations are
not completed to the required standard. Therefore the experienced
practitioners have sought employment outside CAFCASS.
19. Serious consideration now needs to be given
to reorganising the services provided by CAFCASS in ways that
precludes the need for having a national organisation which has
a top down approach. The service offered to the Courts and ultimately
the children needs to be developed out of established trends in
the professional development of social work, particularly in the
use of Independent Social Workers, in family counselling/mediation.
20. We can now envisage a situation in which
the Courts themselves can confidently appoint Registered Independent
Social Workers, independently, as Children's Guardians in Care
and Adoption cases and in Private Law Cases under Rule 9.5. Such
as in the cases of A and H. (Appendix 5.) The Courts and the LSC
would be responsible for setting fees and controlling costs. This
is how payment is made in the majority of cases we are appointed
to as ISWs. This system does work and in our opinion is more cost-effective,
than CAFCASS and the old Guardian ad Litem panels.
21. The requirement for all social workers to
register, with a professional body, offers a crucial safeguard
to check that anyone choosing to work as an ISW has the relevant
qualifications. But the Family Courts, through the system that
currently is in place when identifying an expert, would be the
process by which an ISW or child and family expert would be appointed
as a CG. The court can be assured that the person it appoints
will be registered and regulated by a proper professional body,
which can effectively maintain professional standards, in effect
cutting out the middle man and thereby not only reducing the cost
to the public but more importantly providing a higher level of
service to those who desperately need and deserve it and the appointment
happening with immediate effect.
22. In essence this is the manner in which both
of us get the majority of our work currently. Positives for the
system would be that not only would children and their family's
not have to have contact with a number of child care professionals,
care proceedings would not last as long as they currently do but
also the system would not have to pay more than once for the same
23. The market will always ensure that there
will be a balance between supply and demand and we envisage no
delay in the appointment of a children's guardian, who would immediately
set to work on the case and then remain personally accountable
to the Court for the welfare of that child. It is also the case
that should any ISW's work not be of the best standard then the
court would not have to appoint them on any other case, meaning
all ISW's would have to maintain the highest standards, all of
24. Having been ISWs and worked in this manner
for over 15 years we believe that Independent social work is subject
to the "discipline" of the market place in a way that
working for a state or voluntary agencies is not. It is a field
that only the mature, competent, committed professional will dare
to enter. We entered it most importantly as it offers the child
an independent qualified professional who can assess the most
appropriate way forward for them.
25. For the Courts it can promise the independent
representation of children that bows to no other management nor
bureaucracy, but provides a personal accountability and is uniquely
well equipped to challenge the sometimes easy assurances of the
corporate parent. It provides representation on behalf of the
child, and the child alone which reflects truly the main ethos
of the Children Act 1989.
26. We accept that most of what we have proposed
above relates mostly to public law proceedings. We believe that
with regards to private law proceedings, and the vast majority
are contact disputes, that we should follow the model practised
within the Family Courts in New Zealand but adapted to the culture
of this country. Appendix 6.
27. The first thing to highlight is that we believe
that every child has a right to have safe staying contact with
its absent parent and that this should be the starting point for
every parent to consider when separating and or bringing the matter
before the court; so any matter before the court should be an
application to reduce or terminating contact, not as in the majority
of cases where a parent seeks an order for contact.
28. What both of us are clear about is our understanding
of harm to children, in particular significant harm in the meaning
of the Children Act 1989, to include the impairment of emotional
development and the likelihood of harm. Over the last 15 years,
but especially over the last five years, we have learnt from diverse
and compelling evidence, gained through our practice and learning,
the degree to which family breakdown is a major cause of significant
harm to children.
29. We also know that children who are the subject
of contested, private law, proceedings typically show levels of
emotional disturbance similar to children who are the subject
of care proceedings.
30. Family conflicts that may not involve violence
are, if they are bitter and protracted, also likely to be a cause
of significant harm to children.
31. We believe that before any consideration
should be given to the matter being brought before the court both
parents must attend Family counselling however we have reservations
over the current format that this is offered in as it ties up
the other adult issues with those of the child such as financial
32. It is our experience that so much time, energy
and money is wasted privately, but significantly within the LSC,
on cases in which there are unfounded and false allegations just
to prevent contact. The onus needs to be on the proving of the
allegations and not on the disproving and then in our opinion
there would be a reduction of the protracted hearings, as finding
of facts would occur quicker with accusers needing to be evidential
sound in what they were alleging. Unless there is significant
evidence then all children should have staying contact at least
fortnightly and a tea-time contact with extended time in the school
holidays any reduction in this should be due to the court and
not the other way around, as in building up contact to try and
achieve this format.
33. With regards to contact we are also of the
mind that there should be appropriate provisions made for contact
centres and professional outreach workers, to be available for
those cases that need assessments prior to the making of a final
order but with the capacity to make clear recommendations.
34. The above scenario offers the prospect of
a more appropriately child centred and cost-effective service
to children, families and the Courts. We therefore conclude that
dismantling CAFCASS would be the best course of action to take.
The over £115 million would be better spent being redistributed;
these funds could be dispersed into the above focused approach
to provide the best service for children and their families as
well as the Courts.
35. We accept that it would be naive to suggest
that such changes could be achieved immediately but would stress
that with clear focused plans it is achievable within a relatively
short period of time but crucially, for the children whom the
current system is failing, would receive an appropriate service.
36. In summary the concept that if CAFCASS remains
in existence, in the manner that it currently works, it will eventually
provide a world-class service for children and their families
is pure fantasy and especially of those from the Chief executive
and the senior management team. The current system fails and has
always failed, it leaves children's cases unallocated, significant
delays, children not seen or heard, parents and family's not fully
assessed, the public purse paying twice, if not more times, for
the work which should be completed by CAFCASS and most importantly
the full information not within the court arena, restricting the
ability of the court to make a truly informed decision and therefore
leaving children vulnerable, at risk and their futures in limbo.
37. As practitioners, who really know about this
area of work, need to have our voice heard to create a system
and a way of working which does serve the vulnerable children
and their families correctly and hope that the Justice Select
Committee can assist and promote this change.
This is a case of a child's father seeking a contact
order, the initial application was in December 2005, CAFCASS were
appointed January 2006 and reported in October 2006. Between November
2006 and December 2008 CAFCASS were to facilitate contact via
Contact Centres and failed to do so. In February 2009 the court
dismissed CAFCASS, made the child a party to the proceedings and
NYAS was appointed due to the failure of CAFCASS officers to progress
the situation. NYAS failed to appoint a CG between February 2009
and May 2009 so an ISW was appointed. The child currently has
fortnightly contact although there remain difficulties which need
This is a residence and contact dispute by the absent
parent, the application was made in December 2006, the LA were
involved and reported due to CAFCASS not able to report. CAFCASS
were then instructed to report in 2007 but failed to provide a
clear recommendation in 2008 and facilitate any changes. An ISW
appointment was made in late 2008, the children now have fortnightly
contact with the absent parent.
This case refers to a father's application for initially
contact and now also involves residence. Application first made
in 2001, since that time the child has had four CAFCASS workers
to assess and report and the application is still ongoing despite
the child being old enough to express her own individual views
given that she is 12 years old and feels that these are not being
heard or represented to the courts by the CAFCASS worker.
This case began in September 2008, it was originally
an application for contact. CAFCASS were unable to allocate the
case so an ISW was appointed in November 2009. Contact was facilitated
by an ISW on a twice weekly basis for the purpose of the assessment;
it became clear the child has inorganic developmental delay of
a high level, speech, co-ordination and emotional nature. Due
to the resident parents non co - operation contact ceased at the
beginning of March 20010 and the matter could not be before the
court until April 2010. The ISW could not, despite having been
working and facilitating the contact, be appointed as CG at the
hearing in April 2010, due to the change in recommendations by
the President. The ISW's involvement ceased as did the child's
contact. CAFCASS failed to appoint a CG until June 2010. The CG
spoke to the professionals involved in the case including the
ISW, but did not see the child nor speak to either parent, until
the court hearing in August 2010; the approach by the CG and the
lack of understanding of the child's needs resulted in this child
now having no contact with his father which was clearly beneficial
to his wellbeing as the father withdrew the application because
he would not subject his son to the inadequacy of the worker and
the CAFCASS system as in his view this would further damage his
The House of Commons Committee on the Lord Chancellor's
Department, (Third Report of Session 2002-03): - "...I am
confident that there is another way to manage the organisation
using a more bottom up creative approach and that this would create
an organisation which was more enjoyable to work in and achieved
more while still delivering the overall management of the organisation.
However there is no experience at senior management level in CAFCASS
or the LCD of this approach and therefore there is neither the
vision, expertise or will to try and implement it...".
On 25 May 2005 at Winchester Crown Court in the case
of Crown v Jaswinder Singh Bains, His Honour Judge Longbotham
During the course of this trial the court
has heard some evidence of the problems encountered by CAFCASS
after it's formation. It is not in my judgement helpful to refer
at this stage to those problems in any detail. I confine myself
to saying that it was accepted that there were many problems...
...The court has also heard that at the relevant time there were
very considerable pressures, not just the defendant, but on everyone
involved in CAFCASS and the court system... ...One matter which
has not at any time been challenged in the case is the very high
number of cases which the defendant held at that time and the
very considerable pressures he was under to take further cases
which were allocated. In deed, in one of the relevant areas the
court has heard evidence that the pressures were such that the
employee who normally allocate cases and had already raised that
the defendant was working at or beyond a sensible maximum number
of cases was herself under such pressure that her responsibility
to allocate cases was taken away from her and the temporary assistant,
unknown to line manager, was herself under such pressure to allocate
cases that the defendant continued to be pressed and he was not
very good at saying no. All I can say in conclusion is that I
hope that the working relationship can be restored if that is
possible, and if that is what the defendant wants. Lessons are
always there to be learned from cases, which end this way. I hope
that lessons will have been learned from the issues which have
arisen, and although it will be no consolation to the defendant,
I hope that some good generally will come out of lessons which
have been, I hope, learned...". CAFCASS proceeded to terminate
Jas Bains' self employed contract, entered into protracted legal
correspondence regarding money owed despite a court order.
In the past ISW who have been working with children
and their families but when it becomes identified that the child
should become party to the proceedings have been appointed as
the CG and the funding of this has been via LSC payments, such
as in the cases of A and H. Since 1 April 2010 the ruling by the
President has meant that this can no longer occur, it is understandable
due to the funding being made available to CAFCASS to provide
such a service to children however as the organisation cannot
and does not provide it on a consistent and required basis it
leaves children without the appropriate representation.
Case A involved two children in protracted contact
and resident applications by the absent parent despite the children
having always resided with their father and grandmother due to
being abandoned by their mother. An ISW was appointed and worked
on the case, in December 2009 the ISW role was changed to that
of a CG as it offered continuity and minimal change for the children
and the matter concluded in July 2010. This is a positive example
of ISW being utilised as CG without the introduction and disruption
caused by the CAFCASS system.
FROM THE "FAMILY COURT OF NEW ZEALAND",
The Family Court encourages people to sort out their
disagreements themselves. The first step is counseling. But if
counseling doesn't solve the problems, the Family Court can be
asked to make an order sorting the matter out. In that case, the
first thing the Court is likely to do is refer the parties to
What is mediation?
Mediation is a chance for both sides to discuss their
differences and try to reach agreement. There are two types of
mediation in the Family Court:
- Counsel-led mediation: this takes place away
from the Court and is carried out by a lawyer, who is also a qualified
mediator, appointed by the Judge.
- Judge-led mediation: this takes place at a Court
and is carried out by a Family Court Judge.
Generally, mediation will be carried out by a lawyer
who is also a qualified mediator appointed by the Judge. Mediators
must be approved by the Court and follow the Ministry of Justice
Guidelines for Counsel-led mediation.
Counsel-led mediation will generally by carried out
at facilities provided by the mediator.
What kind of cases go to Counsel-led mediation?
Counsel-led mediation is generally held when someone
has asked the Family Court to make a decision about the care of
a child. This is usually an application for a parenting order.
This says who is responsible for the day-to-day care of a child,
and when and how someone else important in the child's life can
have contact with them.
The parties will usually have completed counseling
but sometimes mediation will start before counseling has finished
or they may be referred to mediation straight away as an alternative
What happens at mediation?
Each mediator has their own particular way of running
mediation. But usually the first thing they will do is try to
find out exactly what the disagreement is about, and see if there
are any issues that can be agreed on at the start. They will encourage
both sides to discuss the disputed issues and, if possible, reach
agreement on some or all of them. The mediator will help make
sure all the possible options are considered, and, if the case
involves children, help focus the discussion on their needs.
Before any agreements are written down, the parties
will be given time to talk with their lawyers if they want to.
Mediation should usually take no more than half a
What happens if one person refuses to come to
If one person refuses to come to mediation, the matter
will be referred to the Court so a Judge can decide what should
happen next. The Court cannot order a person to come to Counsel-led
Judge-led mediation is called a mediation conference.
A mediation conference is a chance for both sides
to discuss their differences with a Family Court Judge, and to
try to reach agreement. The Judge runs the conference, and makes
sure each person gets a chance to say what they think.
What kinds of cases go to a mediation conference
Mediation conferences can be held whenever someone
has asked the Family Court for one of the following:
- A Parenting Order - this says who is responsible
for the day to day care of a child, and when and how someone else
important in the child's life can have contact with them.
- A Separation Order - this make arrangements for
couples to live apart.
- A Maintenance Order - this requires a person
to pay some or all of their ex-spouse or - partner's living costs.
- A Declaration that a child is in need of care
or protection - this is where the Family Court decides that a
child needs care or protection because they have, for example,
been harmed or neglected.
In these cases the Court must arrange a mediation
conference if a Judge says it should do so or if one of the parties
asks it to do so (including the child, if someone has applied
for a declaration that they need care or protection).
In care and protection cases, the child can request
a mediation conference. If a child requests a mediation conference,
the Court must arrange one.
Where is a mediation conference held?
Mediation conferences are held at the Family Court,
but they are more relaxed and less formal than a Court hearing.
Some larger Courts have special rooms for mediation conferences,
with a large table for everyone to sit around.
What happens at the mediation conference?
Each Judge has their own particular way of running
a mediation conference. But usually the first thing the Judge
will do is try to find out exactly what the disagreement is about,
and see if there are any issues that can be agreed on at the start.
Next, the Judge will encourage both sides to discuss
the disputed issues and, if possible, reach agreement on some
or all of them. The Judge will help make sure all the possible
options are considered, and, if the case involves children, help
focus the discussion on their needs.
Before any agreements are written down by the Judge,
the parties will be given time to talk with their lawyers if they
What happens if one person refuses to come to
the mediation conference?
The Court can order them to come on another day by
sending them a summons.
Will the same Judge run any later Court hearing?
They can do. But in some cases Judges who run mediation
conferences may decide that they shouldn't also be the Judge at
the later Court hearing.
Who can come to Counsel-led and Judge-led mediation?
The people having the disagreement need to be there.
They can have their lawyers there too if they want, to help and
If the disagreement involves a child, and the Court
has appointed a lawyer for the child, that lawyer can also be
Lawyers are encouraged to take a back seat during
mediation. The people having the disagreement should do most of
Support people and wider family can also come to
mediation if the Judge or mediator allows it and no-one else objects.
If a mediation conference is held, and the dispute
is about day-to-day care of or contact with children, they also
have the right to be at any later Family Court hearing if mediation
doesn't resolve the dispute.
What happens to any agreement reached at mediation?
Any agreement reached can simply be written down
at the end of mediation, or can be used as the basis for a written
agreement later on. The agreement might deal with arrangements
for separation or for the care of a child, for example.
Alternatively, the Judge can be asked to turn the
agreement into a Court Order. This is called a consent order,
because the Judge can make the order only if the parties agree
it should be made. If later on either person breaches the consent
order, the other person can get the Court to enforce the order
in the same way as any other Court order.
If the agreement is reached during Counsel-led mediation,
the parties' lawyers will need to file the draft orders with the
Court so that they can be referred to a Judge.
What if no agreement is reached?
If it is clear that no agreement is going to be reached,
the Judge or mediator can stop the mediation so that the parties
have more time to think about their options, find out more information,
or try to sort out a temporary arrangement.
The Judge will usually make directions about what
the next steps in the case will be. Counseling can also be arranged
to help work towards a solution.
If the disagreement involves a child, the Judge may
appoint a lawyer to represent the child, if that hasn't already
been done. The Judge may also call for a specialist report on
the child, such as a psychologist's report.
Can mediation take place more than once?
There is no limit on the number of times people can
ask for mediation. But if it seems unlikely that mediation will
lead to an agreement, the Judge can order that the dispute go
to a Family Court hearing, and can set out what has to be done
to help that happen.
Can things said at mediation be used in Court?
No. Nothing said at a mediation conference can be
brought up at a later Court hearing.
Need more information or advice?
For more information or advice, click on the links
below to other pages or pamphlets on this site, or contact a family
lawyer (www.familylaw.org.nz), a community law centre, or the
nearest Family Court Office.
Anyone who needs a lawyer but can't afford one may
be able to get legal aid. This is where the Government pays some
or all of the lawyer's bills (sometimes you may have to pay some
or all of it back).
You can get information on legal aid by:
- contacting the local Legal Services Agency office
(see the blue Government pages at the front of the phonebook);
- visiting the Legal Services Agency website at
- seeing a lawyer and discussing legal aid with
Legal aid is available for all Family Court cases,
except dissolution of marriage (divorce).
80 Self employed Independent Child and Family Care
Experts. We have worked as self employed Children's Guardians
pre and post CAFCASS. We currently work as Independent workers
for the Family Courts. Together we have, over 30 years experience
in a multitude of Social work settings. Back