Written evidence from Pauline Jordan Independent
Social Worker (FC 51)
THE OPERATION
OF THE
FAMILY COURTS
Executive summary
- This evidence focuses on one aspect of this inquiry—"the
impact on court proceedings and access to justice of recent and
proposed changes to legal aid"—and, in particular,
on the capping of Independent Social Worker (ISW) fees which is
due to take effect from October 2010.
- The previous government conducted a flawed and
partial consultation, characterised by failure to understand the
role of ISWs, an acknowledged absence of data on either current
costs or the likely impact of the proposed changes, and refusal
to give meaningful consideration to any of the information it
subsequently received on those issues. New ministers have refused
to reopen the question.
- Particularly at a time when many other parts
of the child protection system are under such strain, ISWs play
a vital role. There is a real risk that the Government's continued
failure to understand that role, coupled with its blinkered approach
to cost-cutting, will mean that ISWs are squeezed out of court
work, to the detriment of the children and families whom they
currently assess.
- The Select Committee may like to look more closely
at the part ISWs play. More specifically, it may like to recommend
that plans to cut ISW fees are frozen and that ISW fees are considered
alongside those of other expert witnesses in the wider review
which is currently proceeding. In that wider context the LSC has
emphasised the importance of gathering evidence about use, comparative
costs and potential impact before drawing conclusions and making
changes—a process it has never undertaken for ISWs.
Background
1. I am an independent social worker. I have
over 18 years' experience as a social worker, and ensure that
my training is kept up to date at my own expense. I am regularly
used as an Expert Witness in court proceedings in cases where,
for example, there is a fundamental difference of opinion between
the local authority and the family. Cases are often resolved much
more quickly when an ISW is involved, who has produced an in-depth
assessment of the family. This can result, for example, in children
remaining in their families of origin, or with family members,
where the local authority care plan has been adoption. Conversely,
a timely and in-depth report by an ISW can enhance the protection
of a child where the decision-making processes of the local authority
have been called into question.
2. There is much evidence that courts value the
input of experienced and fully-independent ISWs, in the decision-making
process. Sir Mark Potter, the last President of the Family Division,
said in a letter to the ISWA in November 2009:
"I am a strong advocate of the work that Independent
Social Workers do in the Family Justice System and the valuable
input they have in what are often the most complex family cases."
(quoted on ISWA website http://www.iswa.ltd.uk/newsDetail.php?id=278)
I have been involved in a wide range of cases over
the four years I have worked as an independent. There are many
examples when, either through pressure of work, inexperience,
or some other variable, family social workers have made recommendations
which have risked compromising the interests of the families with
whom they work. This can often lead to situations where Court
proceedings get stuck. This is where ISWs are particularly valuable.
Brief examples include:
In-depth assessments of families where there has
been a long-running and expensive stand-off between the local
authority and the parents. The timely intervention of an ISW will
often move the case on and can result in children either being
returned to their families, or placed for permanency via adoption
or long-term fostering.
- Assessments of contact where children have had
the opportunity to maintain an ongoing relationship with their
family of origin, thus maintaining wherever possible their sense
of self and identity.
- Assessments of grandparents, where children have
been given the opportunity to live within their extended family
of origin.
- Assessments which have, where appropriate, resulted
in newborn babies being placed with their mothers in parent and
baby foster placements, and not being separated in the early days
of life. These have been particularly important when the mother
has been given the opportunity to continue breastfeeding.
Capping fees
3. A decision was made by the last government
to cut the fees of ISWs to £30 per hour from October 2010.
This proposition was first set out in the consultation paper "Family
Legal Aid Funding From 2010" in December 2008 (http://www.parliament.uk/deposits/depositedpapers/2008/DEP2008-3118.pdf
) without the Legal Services Commission or the MOJ having collected
any data whatsoever about the cases ISWs are used in, nor any
information at all about what is spent on ISWs, and what savings
would result.
4. The purported rationale for this decision
was that ISWs often have the same qualifications as Children's
Guardians, therefore our fees should be in line with theirs. What
the Ministry of Justice and the LSC have failed to recognise is
that the job we do is completely different, particularly since
the role of Guardians has become more restricted as Cafcass resources
have been squeezed. ISW reports are much more in-depth, we do
not have the support of an organisation behind us, we pay for
all our own training, we receive no allowances for office costs,
we pay for our own professional supervision, we are not represented
in court by solicitors, and are personally accountable for every
aspect of our assessments and recommendations.
5. The decision to cut ISW fees was unreasonable,
and procedurally flawed. There has been little, if any, notice
taken of the deluge of objections after the initial proposals
were made, from all involved in the family court system, including
lawyers, families and the judiciary.
6. Our professional body, Nagalro, has made sustained
efforts to engage in dialogue with the MOJ and LSC about the impact
on children of the loss of ISW expertise, along with BASW and
various other interested bodies, but no change has been forthcoming.
The response to the consultation (https://consult.legalservices.gov.uk/gf2.ti/f/137410/3070821.1/pdf/-/Consresponse21.10.09.pdf)
said simply (at para 5.9):
Respondents to the consultation said that independent
social workers undertake a variety of work and this is often not
the same work as is undertaken for Cafcass. However, although
it may not be exactly the same work that is undertaken in each
individual case the qualifications and the pool of independent
social workers undertaking the work are very similar to one another.
It is difficult to imagine that they would have made
a similarly dismissive argument from qualifications if looking
at the role of, say, medical experts, or indeed lawyers, in the
Family Court.
Other expert witnesses
7. Since becoming an ISW in 2006, I have charged
in the region of £60 per hour, £30 per hour travel,
and 40p per mile travel. An in-depth report on a family will usually
cost in the region of £3,000. As a self-employed person I
have considerable on-costs, such as buying and maintaining my
own office equipment, car, heating and telephone bills, ensuring
that my training is regularly updated and so on.
8. Psychologists and psychiatrists often charge
in the region of £200 per hour, with no reductions for travel.
A psychologist's report in a case I was involved with recently
came in at £38,000. Research commissioned by the LSC in 2008
and available on their website suggests an average rate for expert
witnesses doing legally aided work of £152 per hour. (http://www.legalservices.gov.uk/docs/about_us_main/2008surveyanalysis.pdf)
9. I understand that the LSC are now doing work
to gather data on other experts, because of concerns that experts
would stop doing work for the courts if cuts were implemented
without proper analysis and justification. Their website (http://www.legalservices.gov.uk/aboutus/7210.asp)
says:
"We will pilot our strategies with a view to
eventually assuring quality, access and value for money from services
procured from all types of expert...
'We plan to engage with:
experts, and their professional bodies
legal aid service providers, and their professional
bodies."
A marked contrast with the deliberately blinkered
approach they have taken with ISWs, who tend to be the cheapest
experts in family court proceedings. Why not include ISWs in that
current broader work on expert witnesses? All the relevant costs
come from the same legal aid disbursements pot, and a comparison
with the work of other experts is much more apt than the crude
equation with Cafcass guardians which the LSC has so far pursued.
Conclusion
10. I fully understand that these are tough times,
and that the government needs to make savings. But the savings
made should not put children at greater risk, and should be made
on a basis that is fair and properly informed.
11. The Select Committee may like to look more
closely at the part ISWs play. More specifically, it may like
to recommend that plans to cut ISW fees are frozen and that ISW
fees are considered alongside those of other expert witnesses
in the wider review which is currently proceeding.
September 2010
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