Written evidence from Napo (FC 13)
THE OPERATION OF THE FAMILY COURTS
INTRODUCTION
1. Napo is the Trade Union and Professional Association
for Family Court and Probation staff. In the Family Courts Napo
represents practitioners and service managers employed by Cafcass.
Cafcass practitioners have played a significant role in the Family
Courts.
2. In Public Family Law proceedings (care proceedings
and adoption) a Cafcass practitioner (called a Children's Guardian)
appoints a solicitor to represent the child in court. The Children's
Guardian and solicitor will work closely together to ensure the
management and outcome of the proceedings are the best that can
be achieved for the child. The Children's Guardian independently
assesses the application before the court and recommends to the
court what court orders (if any) should be made. In care proceedings
the Children's Guardian would read the local authority files,
attend local authority meetings, interview the child and significant
adults in his or her life (eg parents, grandparents), make enquiries
of the other agencies involved (eg Education and Health). The
Children's Guardian has been involved throughout the case in advising
on the management of the case in the court. This will include
advising on arrangements for the care of the child during the
proceedings and advising what orders the court needs to make prior
to the final order at the end of the proceedings. The Children's
Guardian and the solicitor will discuss with the other parties
what expert assessments are required and they would take the lead
in appointing and instructing any expert appointed. The Children's
Guardian would advise the court on what final orders should be
made and whether the Local Authority Care Plan should be approved
by the court. The Children's Guardian will work closely with the
local authority and other parties throughout the case so often
by the time the final hearing takes place most of the issues have
been resolved and there is little to decide.
3. In Private Family Law (largely disputes between
parents about the care arrangements for their children following
the breakdown of the relationship) a Cafcass practitioner (called
a family court advisor) will advise the court on what order (if
any) should be made. The family court advisor will talk to the
child and interview other significant adults in the child's life
and other agencies (such as Education and Health). Family court
advisors will be trying to work with parents throughout their
involvement so that a solution can be found which is the best
outcome that can be achieved for the child, and which is an outcome
the parents can accept. Sometimes parents are unable to agree
all the issues, and on some occasions they are unable to agree
any issues. In these circumstances the family court advisor's
report to the court will make a recommendation to the court which
is the best outcome that can be achieved.
ISSUES THE
SELECT COMMITTEE
WILL BE
ADDRESSING
The effect of Cafcass' operations on court proceedings
4. Cafcass came into existence on 1 April 2001.
It is largely a merger between the former Family Court Welfare
Service and the Children's Guardian Service. The Green Paper and
the White Paper that heralded its arrival described both services
as being very highly regarded. Since its inception, the service
Cafcass has provided to the Family Courts has become steadily
worse. There have been delays in allocation of work to practitioners
and the work practitioners have been able to do has become increasingly
limited.
5. The delays in allocation have caused an increase
in the time proceedings take to complete. This has led to additional
costs in the courts' time and in solicitors' time. The limit in
the work that Cafcass practitioners can do has meant that courts
have had much less information leading to poorer outcomes for
children. In some cases there has been very little input at all.
Anthony Douglas, the Chief Executive of Cafcass, has said that
it is his intention in future that most cases will not have a
Children's Guardian appointed to them.
6. Napo believes that this situation has been
caused by misallocation and mismanagement of resources. To cope
with this Cafcass has instructed its practitioners to practice
what senior managers call "proportionate practice".
This severely limits the work practitioners can undertake and
decreases their value to the court, and thus to the child.
AN ORGANISATION
THAT IS
NOT CHILD
CENTRED
Allocation of Staff Resources
7. During 2003 Cafcass was the subject of an
investigation by the Constitutional Affairs Select Committee.
This committee concluded that Cafcass was more interested in its
management processes than in the best outcomes for children. This
has been increasingly the case since 2003.
8. When Cafcass came into existence on 1 April
2001 its management structure between chief executive and team
manager (now service manager) was an operations director and 10
regional directors. Today there are three operations directors
and 21 heads of service. In addition each of the three operations
areas have three heads of servicequality improvement, and
they have several quality improvement managers. There are also
teams of complaints managers, children's rights teams and a large
number of policy advisors.
9. Cafcass' financial reports show that in 2006-7,
51 staff were employed at head office, at a cost of £3.36
million. In 2007-8 the number of staff had increased to 79 at
a cost of £4.7 million, and by 2008/9, the latest available
figures, the staff complement had risen to 108 and the total cost
of head office was £11.1 million, including temporary staff
and secondees.
10. On 31 March 2010, Cafcass employed 1,022
family court advisers, 78 family support workers and 116 service
managers (National Audit Office report28 July 2010). Cafcass
employs some 2,200 staff. It is difficult to get exact figures
of how many employees are actually involved in face to face work
with children and families because Cafcass classifies a wide range
of employees as "front line staff" including human resources
advisors. However the proportion of the staff employed by Cafcass
who directly work with children and families (including service
managers) is about 50% at most. The other 50% are employed in
monitoring work, gathering statistics, and developing policy.
11. Even the 50% of staff who are able to work
with children spend much of their time doing other things. Our
members tell us they spend 80% of their time in front of computers.
Cafcass has received the same message. In its submission to the
Inquiry it says its staff have continuously called for more
time to work with children rather than form filling.
12. The case recording system has been in a continuous
state of change. Initially file dividers had the name of the section
of the file they covered. They were replaced with dividers with
numbers on them and a sheet at the front of the file stating what
number related to what section. This facilitated frequent changes
in the recording system. The case recording system is currently
undergoing a further revision. In addition the recording system
continues to be divided between a paper file and an electronic
file. This makes it difficult to know where to look for information
about a particular child.
13. Following the employment of the current Chief
Executive the organisation has re-organised on many occasions
with the next re-structure beginning barely after the last one
had been implemented. A further "Transformation Programme"
is currently "in progress". This constant change is
one reason for the large number of policy officers, quality improvement
managers and human resources staff. The work itself has remained
the same. Cafcass practitioners largely work with children who
are the subject of care proceedings or whose parents cannot agree
their care arrangements, usually following the separation of the
parents. The causes of these problems have not changed for a great
many years.
14. During 2009 there was an increase in care
proceedings. Cafcass senior managers blame this increase for many
of the current problems. However Cafcass has had a 7% increase
in funding in real terms for the past two years and it had a £10
million one-off extra payment this year. In Napo's view if this
money had been spent on front line staff (practitioners, service
managers and family support workers) it would have been able to
manage this increase.
15. Cafcass practitioners are now carrying an
average caseload of 25 rather than an average of 12 cases as agreed
in a workload agreement in 2004. This agreement was based on an
analysis of a substantial amount of data, much of it gathered
prior to Cafcass' existence. The average timings had a considerable
empirical basis. The average caseloads have doubled and the form
filling and other bureaucratic requirements are far greater than
in 2004. Problems with the increased rate of work became obvious
initially in London because in addition to the increase in work
Cafcass was able to halve the practitioner workforce by not giving
any further work to self-employed practitioners. Subsequently
Cafcass was given more money and used some of it to use self-employed
staff.
16. Napo was told that practitioners would be
given detailed advice about what to do and what not to do by service
managers. Service managers also have very high workloads and have
not been able to give this advice. Many practitioners receive
very little supervision and allocation by e-mail continues to
be common.
17. Some general advice has been given about
what does not need to be done. In public Family Law work this
has included not reading local authority files, reading the minutes
of local authority meetings rather than attending them, interviewing
parents and others by telephone rather than having face to face
meetings, de-allocating cases during quiet periods and having
a "watching brief". The Children's Guardians' job is
to independently assess the evidence, analysis, and planning of
the local authority. It is difficult to see how this can be achieved
if the Children's Guardian does not read the local authority file,
relies on the minutes of meetings to know what is happening and
ceases to be involved at all during parts of a case. Napo has
been told that during the "watching brief" period the
guardian will become active if advised to do so by the children's
solicitor and the local authority. The current situation is that
it is the guardian who generally keeps the children's solicitor
informed. If the local suthority is about to take "some action
that would concern the Children's Guardian they are unlikely to
contact the Children's Guardian and say "We are about to
do something you will be unhappy with, please arrange a court
hearing to stop us". Similarly in both Private and Public
Law Cafcass practitioners are undertaking a social assessment.
This means visiting families and children in their homes and seeing
them interacting together. Such an assessment cannot be undertaken
by telephone.
18. Cafcass has become increasingly reliant on
a "Duty Service" during the past three years. Children
are not allocated a practitioner for long periods, but they are
allocated to a Duty Service. These cases are then counted as allocated.
This is a much less efficient use of practitioner time because
several people have to read records (up to 14 lever arch files)
and talk to other significant people in the case. It increases
the stress for children because they will see several Cafcass
practitioners and it is dangerous because several people can never
know a case as well one.
19. The Chief Executive of Cafcass says he is
proud that his organisation has "absorbed" a substantial
amount of extra work. The reality is that practitioners are working
evenings and weekends to provide a minimal service.
Professional autonomy and accountability
20. Prior to the inception of Cafcass, practitioners
enjoyed a relatively high degree of professional autonomy when
compared to social workers employed by the local authorities.
This continued for a long period after Cafcass came into existence.
One setting where this made a difference was at court hearings.
When social workers gave evidence it was often clear that someone
else had made decisions in the case and they often struggled to
explain a decision they had not made. Cafcass practitioners were
more credible witnesses because they were explaining their own
analysis and decisions. They also were prepared to listen to new
arguments and examine new evidence, and change their view if necessary.
Local authority social workers did not have the authority to change
their views and would often doggedly defend the local authority's
position.
21. Cafcass practitioners in both Private and
Public Family Law have to have the confidence and ability to stand
up, when necessary, to the local authority and other professionals.
It is not a job (to quote the Chief Executive of Cafcass) for
"shrinking violets". Napo is concerned that in the future
Cafcass practitioners will not be people who can do this. Napo
is particularly concerned about the Cafcass Workforce Strategy
which states that newly qualified social workers will be employed
by Cafcass and after three years' training, including one year's
placement with a local authority, will be able to practice as
Cafcass practitioners. Previously Cafcass practitioners were required
to have five years experience and most had ten years or more.
Children's Guardians invariably had long experience of working
in local authorities. This gave them the confidence, ability and
credibility to be independent practitioners able to make their
own assessments, and for those assessments to be treated with
respect by courts and other professionals in the family justice
system. Napo doubts the "home grown" practitioners will
be in a similar position.
22. Napo is not arguing for practitioners to
be unaccountable, and to be allowed to do what they like. Clearly
that could lead to dangerous situations. It is arguing for Cafcass
practitioners to have the same professional freedom that other
professions enjoy. In Napo's view this would not only improve
practice, it would also cost less.
23. In Napo's view much of the responsibility
for the decline in the service given by Cafcass to children and
the courts can be laid at Ofsted's door. Ofsted's inspection regime
largely consists of examining files. This has caused the huge
increase in forms and other records.
24. Ofsted says that Cafcass now provides a better
service as a result of its intervention. The true situation is
best summarised by an article published on 23 March 2010 in Community
Care Magazine. The article reported the following comments
on the service we have now. Caroline Little, Co-Chair of the Association
of Lawyers for Children, said "There are still hundreds of
unallocated cases and there is no sense of children coming first.
Often, duty guardians haven't spoken to parties involved in the
case or even seen the files."
Margaret Wilson, Chair of the Family Courts Committee
at the Magistrates' Association added "We need proper welfare
advice and we need to know these vulnerable children are being
allocated a named guardian throughout the entire case." Anthony
Douglas, Chief Executive of Cafcass, is reported as saying "such
a service resembled a golden age and is no longer sustainable."
25. In summary, large sums of money have been
expended to move from a golden age to a much poorer service where
there is no sense of children coming first. In Napo's view if
the Cafcass budget were better spent, so that a much higher proportion
of Cafcass employees were front line practitioners, the service
could return to that provided in "the golden age" and
possibly better.
The impact on the courts of the sponsorship of
Cafcass by the Department of Education
26. At its inception Cafcass was sponsored by
the Department of Constitutional Affairs. There did seem to be
some advantage in Cafcass being linked to the department that
manages the family justice system. However Napo was disappointed
that there seemed to be little "joined up thinking"
in managing budgets, and in particular the effect on other family
court justice budgets of delays in Cafcass practitioners being
appointed to a case.
27. If Cafcass was sponsored by the Ministry
of Justice then it would be hard for Cafcass senior managers to
declare that Cafcass is not a court service. Cafcass senior managers
see Cafcass as a safeguarding service. Cafcass practitioners have
always been concerned to play their part in safeguarding children,
as do other agencies that provide services for children. However
they see their main role as providing advice to the Family Courts
and seeking to resolve conflicts with minimal intervention by
the Family Courts.
The impact on court proceedings and access to
justice of recent and proposed changes to legal aid
28. Napo shares the concerns of other organisations
in the family justice system about the recent changes. We are
concerned that in many parts of the country only a limited number
of solicitors will be available, and that a number of very good
and experienced solicitors will not be given work for what appear
to us to be spurious reasons.
The role, operation and resourcing of mediation
and other methods in resolving matters before they reach court
29. Napo believes that a court hearing is not
the best way to resolve disputes about children. However we strongly
believe that all disputes cannot be resolved by mediation and
dispute resolution. There will always be a small number of cases
that will have to be determined by the court.
Some parents will accept that they are unable to
resolve a dispute themselves and they will abide by the court's
decision. However often one or both parents who have reached this
situation take a very entrenched position and their disputes can
continue in the Family Courts for many years. These undoubtedly
have an adverse affect on the child.
Confidentiality and openness in family courts,
including the impact of the recent changes in the Children, Schools
and Families Act 2010.
30. Napo does not oppose more information being
published about Family Court decisions but we are concerned that
these changes were rushed through in the "wash up" before
the dissolution of the last parliament. We are concerned that
inadequate thought has been given to protecting the identities
of children.
September 2010
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