Operation of the Family Courts - Justice Committee Contents

Written evidence from Jas Bains and Joanna Rees-Bains[80] (FC 36)

1.  From experience we believe that the most appropriate contribution we can make is in giving a response to question (i).


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 something.

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 within CAFCASS.

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 the Court.

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 3.

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 child.

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 service.

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 the time.

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 matters.

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.

September 2010

Appendix 1


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 addressing.


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.

Appendix 2


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 son.

Appendix 3

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...".

Appendix 4

On 25 May 2005 at Winchester Crown Court in the case of Crown v Jaswinder Singh Bains, His Honour Judge Longbotham stated:- "…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.

Appendix 5

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.

Appendix 6




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 mediation.

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.

Counsel-led mediation

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 to counseling.

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 day.

What happens if one person refuses to come to mediation?

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 mediation.

Judge-led mediation

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 (Judge-led mediation)?

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 want to.

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 advise them.

If the disagreement involves a child, and the Court has appointed a lawyer for the child, that lawyer can also be there.

Lawyers are encouraged to take a back seat during mediation. The people having the disagreement should do most of the talking.

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.

Legal aid

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 www.lsa.govt.nz,; or
  • seeing a lawyer and discussing legal aid with them.

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

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Prepared 14 July 2011