Operations of the Family Courts - Justice Committee Contents

Written evidence from Napo (FC 13)



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.


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.


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 service—quality 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 report—28 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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Prepared 14 July 2011