Operations of the Family Courts - Justice Committee Contents


Written evidence from the National Society for the Prevention of Cruelty to Children (FC 50)

THE OPERATION OF THE FAMILY COURTS

INTRODUCTION

The National Society for the Prevention of Cruelty to Children (NSPCC) is the UK's leading charity specialising in child protection and the prevention of cruelty to children. The NSPCC aims to end cruelty to children in the UK over future generations. In pursuit of our vision we will:

—  Create and deliver services for children which are innovative, distinctive and demonstrate how to enhance child protection most effectively.

—  Provide advice and support to ensure that every child is listened to and protected.

—  Provide advice and support to adults and professionals concerned about a child and if necessary take action to protect the child.

—  Work with organisations which work with children to ensure they effectively protect children and challenge those who do not.

—  Campaign for changes to legislation, policy and practice to ensure they best protect children.

—  Persuade everyone to take personal responsibility for preventing cruelty to children.

—  Inform and educate the public to change attitudes and behaviours towards children.

—  Use our statutory powers as necessary to protect children.

THE EFFECT OF CAFCASS'S OPERATION ON COURT PROCEEDINGS

1.  The NSPCC is very concerned about the level of service from Cafcass which has resulted in an unacceptable backlog of cases in public and private proceedings for long periods. They have been operating on an emergency footing for a year which has meant that they have only been able to offer "a minimum safe standard" of service delivery. We are very concerned that this "safe minimum" has caused harm to children and continues to cause harm through the delay in taking cases through the courts and because children are not seeing Guardians for sufficient periods and ,according to our practitioners, in some cases have not been seeing them at all.

2.  We recognise that there has been a very significant and continuing increase in the number of cases that have been referred to Cafcass, following the Baby P case, and that there has not been an increase in resources to address this.

3.  However, we are alarmed to hear of the recent proposals from Cafcass suggesting they are to have a "watching brief" system which would replace guardians in all but the most pressing cases. A named practitioner would monitor proceedings by keeping in contact with the child's solicitor and would only get involved if it became a pressing case. We consider this to be a very risky approach which could mean that cases where no Guardian is involved will drift or the "pressing cases" will be missed by solicitors who do not have the social work skills which are essential to promote the best interests of a child. We not only think that this approach is unsafe, we also question whether it is legal given the provisions of s.41 of the Children Act 1989.

4.  S41(10) CA 1989 introduced a significant case management role for Guardians which includes advising the court on the timetabling and allocation of cases, considering whether the order applied for or any other is appropriate, and accepting service of documents on behalf of the child.

5.  4.11A of the Family Proceedings Rules 1991 specifies that the appointed guardian shall have regard to the principle of minimising delay, and sets out precise duties that the guardian must follow throughout the proceedings.

The independent assessment of the child's situation carried out by the guardian working in 'tandem' with the child's solicitor provides courts with continuity of oversight of the case and the unbiased information it needs to give paramount importance to the best interests of each child.

6.  The role of the named guardian throughout the court proceedings is to provide the child with the promotion and representation of their views, wishes and feelings and welfare. Most children in proceedings are too young to instruct a solicitor directly. The guardian is obliged to undertake a case management role, advising the court on the child's standpoint throughout the proceedings and if necessary seeking a directions hearing solely on the issue of timetabling and the impact of delay upon the child.

7.  A significant strength of the current situation is the partnership or "tandem" representation between the guardian and the solicitor. Neither can solely provide the range of skills and expertise needed by the child in order that both their rights (wishes and feelings) and their best interests (welfare needs) can be addressed properly. Together they constitute what we believe to be one of the most sophisticated quality assurance mechanisms found in any jurisdiction. They are able to present a considered and carefully constructed case on behalf of and for each individual child. Without the continuity of the guardian, this aspect is weakened to the point where it is in danger of being lost.

8.  In our view, it is vital that the named guardian should represent the child's position and (if old enough) views at every stage of the proceedings.

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

9.  Over recent years the NSPCC has supported the Law Society and the Family Bar Association in efforts to resist cuts to legal aid. We support the Law Society's current position which amounts to a robust objection to the results of the latest round of family law tenders undertaken by the Legal Services Commission (LSC). We note that the number of firms assigned to family law work are to be cut from 2,400 to 1,300. We understand that the level of this reduction in the number of firms was not anticipated by the LSC. We are alarmed at this drastic reduction in access to justice and we are particularly concerned about the impact on cases involving vulnerable children. We have offered to join the Law Society in their judicial review of the family law tenders.

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

10.  The NSPCC recognises the increasing role that mediation is playing in resolving family disputes, and the advantages to children that can stem from disputes being resolved by mediation rather than court proceedings. We consider that as mediation allows parents to reach agreement between themselves (which may consequently be more likely to be abided by than a court order), and may improve communication between parents, it is generally in the best interests of the children.

11.  We consider that meditation can improve outcomes for children by reducing hostility and conflict between parents, and deliver faster resolution of issues. We firmly believe that ongoing conflict between parents negatively affects the wellbeing of the child involved.

12.  The NSPCC would welcome a more extensive role in for mediation in family disputes but with three crucial caveats:

(a)  Children must be protected throughout the mediation process.

(b)  Children must be listened to throughout the mediation process.

(c)  The mediation must be properly resourced in terms of the service and expertise it can offer.

More needs to be done in order to ensure the caveats are addressed.

(a)  Children must be protected throughout the mediation process

13.  The NSPCC is committed to campaigning for changes to legislation, policy and practice to ensure they best protect children. More safeguards are needed to ensure that mediation is not attempted in circumstances where children are not fully protected. We are mindful of the key role of professionals who come into contact with children in ensuring child protection, and consider that more could be done to ensure that mediators are effectively protecting children.

14.  We recognise that currently parents who want to be publicly funded by the Legal Services Commission are required to consider the use of mediation if they wish to issue court proceedings, with certain exemptions. One exemption is where the applicant has made an allegation of domestic abuse against a party to the mediation that has resulted in a police investigation or the issuing of civil proceedings for the protection of the applicant in the last 12 months. Further, the mediator has the general power to decide that mediation is unsuitable for the dispute, the parties, and all the circumstances in a case where domestic abuse is alleged.

15.  We further recognise that the Legal Services Commission requires that family mediation is provided in accordance with a Code of Practice designed to ensure that parties participate in mediation only if they are willing and not influenced by fear of violence or other harm, and that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible. The Family Mediation Council (FMC) also has a Code of Practice.

16.  Given the NSPCC's recommendation that professionals working with families where domestic violence is found should always treat any child present as at risk of maltreatment even if there is no evidence of violence having been directed at them, we are concerned about the risks that mediation between parents may pose to children in cases where domestic violence is present.

17.  We are concerned to ensure that similar safeguards would apply to any compulsory mediation assessment sessions in both privately-funded and publicly-funded cases, so that mediation assessment sessions are not compulsory in circumstances where there is a risk to children. We are also concerned to ensure that there is close scrutiny of which cases are, and are not, suitable for mediation, and that the safety and welfare of the children concerned should be the primary consideration in making this decision. This is important for ensuring consistency with the principle of the child's welfare being paramount in court decisions which affect them, as established by the Children Act 1989, and also Article 3 of the UN Convention on the Rights of the Child. This requires that in all actions concerning children, including in courts of law, administrative authorities and legislative bodies, the best interest of the child shall be paramount.

Consequently, the NSPCC recommends that:

(a)  Mediation assessment sessions are compulsory only in "suitable" cases, regularising the position between publicly funded and non-publicly cases.

(b)  In determining whether a case is "suitable" for mediation, primary consideration is given to the welfare of the children involved.

(c)  Mediators are trained to be alert to signs of domestic violence and are given clear guidelines on procedures for referral to child protection services.

(b)  Children must be listened to throughout the mediation process

18.   The NSPCC is committed to listening to children's wishes and feelings about their future in the event of a family breakdown. This is consistent with Article 12 of the United Nations Convention of the Rights of the Child which grants children who are capable of forming views the right to express them freely in all matters affecting them. It has been shown that it is decidedly unhelpful for children to be "kept in the dark" about what is happening during parental separation. There is also some evidence to show that mediation that takes place in consultation with children can be a positive experience for them as well as for their parents.

19.  We are encouraged that in publicly-funded mediations, the mediator is required to have arrangements in place to ensure that the parties are encouraged to consider the welfare, wishes and feelings of each child, and whether and to what extent each child should be given the opportunity to express his or her feelings during the mediation. We are further encouraged to learn that mediators who have contact with children should have particular training. We consider that such safeguards ought to extend to privately-funded mediations, but that further safeguards should be put in place.

20.  We have conducted research into children involved in residence and contact disputes resolved by way of court proceedings, and note that of those who did not attend court, 40% would have liked to do so and to talk to the judge, whilst 60% would not have wanted to attend.[61] The NSPCC considers it unacceptable that none of the young people who responded to the study exhibited any awareness of anything they could personally do to initiate change in their residence and / or contact arrangements.

21.  More needs to be done to ensure that the children's wishes and feelings emanate from the children themselves rather than through their parents' voices. We recommend that subject to agreement of the child, in all suitable cases the mediator should meet with the child directly in order to ascertain their wishes and feelings. The mediator can then determine whether the child should participate directly in the mediation sessions or not.

22.   We further recommend that mediators receive specific training in determining suitable cases, interacting with the children and making these decisions. In cases where it is not suitable for the mediator to meet with the child directly, further thought should be given to methods of assuring the children that their wishes and feelings will be listened to.

23.  We are mindful of the law that if it is in a child's best interests to be made party to residence and contact disputes, the court may appoint a guardian ad litem. Children's opportunities to be represented should not be reduced if a dispute is resolved by mediation rather than by the court process. We therefore consider that provision ought to be made for a similar individual to be appointed if the mediator considers it to be in the child's best interests.

The NSPCC therefore recommends that:

(a)  In all "suitable" case, mediators meet directly with children to ascertain their wishes and feelings.

(b)  Mediators are specifically trained in how to determine the appropriate extent of a child's direct involvement in mediations, and how best to ascertain children's wishes and feelings.

(c)  Further steps are taken to communicate to children that their wishes and feelings are being listened to, even if it is not appropriate for them to be directly involved in the mediation.

(d)  Mediators should have the power to appoint a representative for the child (analogous to a guardian ad litem) to participate in the mediation if it is in the child's best interests.

24.  In summary, the NSPCC considers that compulsory mediation assessment should only be undertaken if the above safeguards are put in place and there is a clear commitment by the government to properly resource effective mediation.

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

25.  The NSPCC is concerned about measures contained in the Children, Schools and Families Act 2010 with regard to media access to family courts and the relaxation of the rules on publishing sensitive personal information. We support efforts to make the work of family courts more transparent to the public, but the measures in the Act will increase the likelihood of identification of already vulnerable children in press reporting.

26.  The anonymity of children cannot be guaranteed under the proposals and allowing this information to be published would make it easier to identify vulnerable children within their communities. The NSPCC has experience of cases where enough information about young witnesses in the criminal courts has been reported in a public case which allows the clear identification of the young witnesses. This can result in lasting and serious damage to vulnerable children who have taken part in family court proceedings and can act as a disincentive to children and families giving evidence.

We therefore oppose the implementation of the further sections in the Act which would allow the publication of "sensitive personal information".

September 2010


61   "Your Shout Too" research by the NSPCC and CAFCASS, Judith E Timms, Sue Bailey and June Thoburn, NSPCC Policy Practice Research Series, 2007. Back


 
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Prepared 14 July 2011