Written evidence from Nagalro (FC 46)
THE OPERATION OF THE FAMILY COURTS
EXECUTIVE SUMMARY
1. Nagalro has approximately 670 full members
who represent the interests of children involved in a range of
public and private law proceedings across the family jurisdiction.
Some 60% work for the Children and Family Courts Advisory and
Support Service (Cafcass) acting as Family Court Advisers (FCAs)
and Children's Guardians (CGs). Our members work in all areas
of England and Wales and also act as Independent Social Workers
who may be commissioned by the court, the parties and by local
authorities to offer expert witness reports in a wide range of
some of the most complex cases coming before the courts.
2. Our evidence will address all four
issues identified by the committee but our over-riding concern
is how the rights and welfare of the child are protected in family
proceedings and this will be a common theme in our evidence.
— The
independent representation of a particular child's interests is
an essential part of mainstream child protection in cases in which
there can be a conflict of interest between both the local authority
and the child in public law proceedings or between one or both
parents in private law proceedings. It is the only effective backstop/quality
control mechanism available to the children whose lives will be
changed for ever by the court's decision.
— There
is a very fine line between the very limited "proportionate"
service now being provided by Cafcass and potentially dangerous
practice.
— The
assumption underlying Cafcass's operational decision-making and
resource allocation is that what is most effective for Cafcass
as an organisation will also be best for the children concerned.
However, just as the interests of parents and vulnerable children
may be in conflict, one has to ask whether that is a safe and
sustainable assumption. Creating complex duty or watching brief
systems of proportionate working around, rather than with, the
child may mean the available resource is being spread dangerously
thinly based on limited arm's-length risk assessments that are
insufficient to protect children and their interests. Cafcass
has embarked on an extremely high-risk strategy compounded by
a deplorable lack of management information about when and if
the child has been seen.
— Nagalro
believes there are serious questions to be answered about whether
the operational changes which have been introduced by Cafcass
are either the most effective for the children concerned or the
most cost-effective use of all available resources, both human
and financial.
— The
current model of service delivery is increasingly in conflict
with Cafcass's statutory duties. Two examples of this are the
attempts to amend a core provision—s41 Children Act 1989—via
the Children Schools and Families Act 2010 and the Cafcass Legal
Note of June 2010, which attempts to re-interpret s12 Criminal
Justice and Court Service Act 2000 to justify fundamental changes
to service delivery which appear to be of doubtful legality.
— There
is now a very real danger that the integrity of a legislative
framework, which has been painstakingly built on the accumulated
interdisciplinary knowledge and expertise of the last thirty years,
will be sacrificed to save Cafcass as an organisation, rather
than the opposite being the case. The strength of feeling on this
issue led to the publication on 29 July 2010 of a joint position
statement signed by a compelling cross section of family justice
professionals. The sixteen organisations included legal, medical
and social work professionals.
— Nagalro
is gravely concerned that the extension of the President of the
Family Division's Interim Guidance for a another year from September
30 2010 will be used by Cafcass to legitimise a further dilution
of services already pared to the minimum and which already risks
putting our members in breach of both their statutory responsibilities
and their professional ethics.
3. A second theme is the lack of joined
up thinking, policy development and funding which has characterized
the government's approach to family court proceedings.
The involvement of two government departments, the
Ministry of Justice (MOJ) and its non-departmental body the Legal
Services Commission (LSC) and the Department of Education (DOE)
(formerly Department for Children Schools and Families (DCSF))
and its non-departmental public body, Cafcass has not worked well.
In fact, it has been counterproductive, and has not worked cost
effectively in terms of the limited resources available or effectively
in terms of outcomes for the children and families concerned.
The Justice Committee criticised the interdepartmental funding
wars in its report on Family Legal Aid report, published in July
2010—
"We believe that what is important is that
vulnerable children trapped in intractable court cases, whether
public or private, receive the advice and representation that
they need and that the court has available the best welfare information
it can have. If achieving these goals requires a funding model
that upsets departmental silos, so be it"[87].
Far from being resolved the departmental funding
wars have continued to the detriment of the children and services
concerned.
4. The committee also cautioned the LSC
against introducing policies in the absence of the necessary consultation,
evidence and impact assessments to support drastic changes and
this is our third theme. This is once again the case in relation
to fundamental changes in legal aid provision, namely the drastic
reduction in the availability of independent expert social work
witnesses and the cull of experienced family law solicitors as
a result of legal aid changes from 2010. These restrictions will
effectively dismantle a well-established infrastructure of mainstream
child protection socio-legal services. Nor will they achieve the
stated objective of saving money, as the dearth of legal and social
expertise will further exacerbate problems in courts already crippled
by delay and will only lead to additional costs elsewhere in the
system.
ISSUE 1: THE
EFFECT OF
CAFCASS'S
OPERATIONS ON
COURT PROCEEDINGS
AND THE
IMPACT ON
THE COURTS
OF THE
SPONSORSHIP OF
CAFCASS BY
THE DEPARTMENT
OF EDUCATION
The effect of Cafcass's operations on court proceedings.
5. The rise in public law applications following
the Baby Peter case has put great pressure on the courts and Cafcass.
As a response to the pressures, the President of the Family Division
published Interim Practice Guidance on 30 July 2009 and Cafcass
introduced new service Priorities from August 2009. A duty guardian
system was introduced in an effort to reduce waiting lists.
6. At a hearing on 7 September 2010, the
Chief Executive of Cafcass, Anthony Douglas, told the Parliamentary
Public Accounts Committee that it would be necessary to extend
the emergency measures and the minimum service provision for another
year from September 30. The continuing failure to provide the
services to which children are statutorily entitled was described
as "shocking" by the Committee Chair, Margaret Hodge.
7. In carrying out their task, guardians
act as independent professionals who provide a non-partisan view
to the court. The guardian carries out an investigation of all
the child's circumstances and has specific duties set out in court
rules, such as giving age-appropriate advice to the child and
obtaining any expert opinion needed. The guardian instructs the
child's solicitor on what would be the best outcome for the child
and works with the solicitor to ensure that the voice of the child
is heard in the proceedings, to present the case in court, and
to make recommendations in the child's best interests. This "tandem
model", in which solicitor and guardian work together, is
one of the most effective quality assurance mechanisms for children
found in any jurisdiction.
8. The question arises as to whether the
wide powers and duties which are legally vested in the child's
guardian can be properly exercised if the guardian's professional
decisions are overridden or vetoed by managers. Nagalro has recently
written to Cafcass to express concern about a template letter
it has written for children's guardians to send to solicitors
representing children, asking them to inform the court and parties
that they are standing themselves down from their role. The apparent
authority for this letter is a legal note produced by Cafcass
which contains a new more "flexible" interpretation
of its powers under s12 Criminal Justice and Court services act
200—the Act under which Cafcass was established. Our legal
advice indicates that the note contravenes s41 Children Act 1989,
which is designed to ensure that the child receives the protection
afforded by the continuity of appointment of the same children's
guardian throughout the proceedings.
9. Nagalro's report, Time for Children,[88]
examined the impact of changes in service delivery brought about
by this guidance. It was based on a survey of members' public
law work for Cafcass in Sept-Oct 2009 and produced a dismal and
worrying picture of services provided by Cafcass. The experience
of our members is that matters have deteriorated further since
the survey was carried out.
Backlogs and Delays
10. In early autumn 2009, taking the most conservative
estimates, there were over 860 cases waiting, which equates to
at least 10% of the annual workload. Of cases survey respondents
held, 40% were unallocated for over two months—including
10% for over three months;
11. It has subsequently become apparent that
Cafcass waiting list figures are unreliable. Many cases are allocated
to managers, which removes the case from the waiting list but
the child may receive no service and may be effectively parked
in an administrative limbo. Cafcass statistics are now
classified as the official statistics and are accepted without
external analysis. A General Social Care Council conduct committee
held on 3 September 2010 criticised Cafcass for "dishonest
spin on the scale of the problems it faced" in relation
to delays.[89]
Restricted services and lack of continuity of
appointment
12. The pared down services provided to children
under duty systems and proportionate working arrangements are
becoming further and further removed from the service required
by the primary statute and court rules.
13. In cases where the child is a party, Cafcass
has a statutory obligation to provide the courts with a named
guardian who has continuity of appointment for the duration of
the proceedings (s41 Children Act 1989). The guardian works in
"tandem" with a children's solicitor to ensure that
the child's rights and welfare are both protected and that he
or she is not procedurally disadvantaged in relation to the other
parties in accordance with Article 6 European Convention on Human
Rights (ECHR), that their voice is heard in the proceedings (Article
12 United Nations Convention on the Rights of the Child (UNCRC)
and that their rights to family life are protected (Article 8
ECHR). Having a consistent relationship with an adult they can
trust is also very important for children themselves at a time
of maximum distress and disruption, when they are very likely
to have been separated from their parents, family, school and
friends.[90]
14. If too much time elapses between the child's
removal from home and the final placement decision, outcomes may
be determined through the passage of time and drifting relationships
rather than on the original facts of the case.
15. Given the current upsurge in the number of
care proceedings being taken by local authorities, it becomes
even more important that guardians are able to ensure that the
right children are being removed from their families and the right
arrangements made for them. These are matters of significant public
interest.
An OFSTED framework of evaluation which is not
fit for purpose leading to excessive administrative procedures
16. The framework of evaluation being used by
OFSTED is not fit for purpose and is extremely wasteful of scarce
professional time. It fails to take account of the statutory differences
between public and private law cases and inspects Cafcass as a
safeguarding agency using the five general outcomes set out in
"Every Child Matters" as inspection criteria rather
the specific forensic framework clearly set out in primary statute
and the accompanying court rules and guidance. The net result
has been that the OFSTED inspections have skewed rather than supported
the professional task.
Poor workforce management
17. The workload for employed staff has increased
from a norm of 12 to 25 public law cases, with pressure to take
on even more work. This has resulted in increased rates of sickness
in both front-line staff and management. Practitioner time spent
on each case has diminished in proportion even though the task
has not changed.
18. Cafcass has imported a flawed and now largely
discredited model of line managed accountability from local authorities.
This is not only inappropriate but incompatible with the direct
line of professional accountability which children's guardians
have to the courts as well as to Cafcass as their employer. Cafcass
has never fully understood the nature of the dual accountability
and this has had a negative impact on the court welfare services
received by the court.
19. There is significant spare capacity within
the self-employed workforce to take on new cases, although this
group continues to be substantially underused by Cafcass. 70%
of self-employed members surveyed had spare capacity at the time
of the Nagalro survey and many have now left the service. Instead,
numbers of more expensive agency staff have been greatly increased.
Many are inexperienced in the role but are likely to ask fewer
questions about the way the role is being re-defined.
Reduced focus on the child
20. Time for Children found that respondents
were being instructed by managers to prioritise tasks other than
work done with and for the child and to see children less often
than practitioners think is appropriate. The voice of the child
is lost when duty advisers frequently do not see the children
and there is delay in appointing a permanent guardian. Valuable
opportunities may be lost to scrutinise the local authority plan
for the child and change the direction of the case at the earliest
stage, with attendant significant saving of time and costs to
the court..
Constraints on professional independence and the
independent representation of the child
21. Cafcass has become an increasingly managerial
and bureaucratic agency and Time for Children showed guardians
were being directed by managers (who do not have detailed knowledge
of cases) not to make visits or attend court hearings which they
thought were necessary for a thorough investigation of the child's
situation and to be able to properly advise the court.
Definitions of a "safe minimum service"
22. Cafcass has now been on an "emergency
footing" able to only a "safe minimum service"
delivery within the finite resources available since August 2009.
Recent very significant changes in policy and practice have been
driven through by what many staff experience as an oppressive
and unsupportive management culture. The concept of a "safe
minimum" is essentially a subjective rather than an absolute
concept, dependent on different local and managerial definitions.
The organisational pressure to do much less work on many more
cases has created tension between management's dictates and the
statutory duty of the children's guardians under the Children
Act 1989—to give paramount consideration to the child's
best interests. This has resulted in considerable confusion and
anxiety for front-line staff concerned about potentially dangerous
practice and the risks to children. Many have left rather than
appear to be compliant with a system which they feel exposes children
to an unacceptable level of risk and which compromises their professional
ethics. The problems are compounded by a perceived fettering of
professional independence and a blurring of the boundaries of
professional accountability between Cafcass the corporate body,
and its individual practitioners.
23. Children's Guardians have a dual accountability
to the courts and to Cafcass. Placing Cafcass within the DCSF
(now the DfE) has distanced family court services from the court.
A closer link to local courts is widely felt to be more appropriate.
Many experienced staff who have left the service may well consider
returning if there were a fundamental change of ethos and organisational
culture.
Impact on the courts of the sponsorship of Cafcass
by the Department of Education
24. Cafcass was established in 2001 as non-departmental
body under the sponsorship of the Lord Chancellor's Department—now
the Ministry of Justice. Following a highly critical report from
a Parliamentary Select Committee of Enquiry in 2003, the Chair
and Board were replaced and the sponsorship department moved to
the department for Children Schools and Families (DCSF)—now
the Department for Education (DfE). Unfortunately Cafcass and
the provision of family court welfare services to children generally
has not been seen as central in either department and Cafcass
appears to have occupied a peripheral position in both department's
planning. This is all the more regrettable given that Cafcass
is now the largest employer of social workers in the UK.
25. Further, the departmental split between
the legal services provided by the MOJ and the social work services
provided by the DCSF has resulted in attempts by both departments
to off load as many costs as possible to the other department.
This has in turn resulted in a failure to appreciate and capitalise
on the potential to develop a range of interdisciplinary services,
which could have bridged many gaps in service provision and ensured
that scant resources were deployed in a truly joined up and cost
effective manner.
26. One example of this is the current lack of
connection between the conciliation and dispute resolution services
provided by Cafcass and funded by the DOE and the mediation services
including direct consultation with children provided under contract
to the Legal Services Commission and funded by the MOJ. Another
is the way in which contact centres are funded and commissioned
by Cafcass. The resulting patchwork pattern of service provision
shows little evidence of inter-departmental strategic thinking.
27. Although Cafcass is legally constituted as
a non-departmental public body, it has always operated as a de
facto government agency and this has had a severely restrictive
effect on its capacity to advocate for the constituency of children
whose interests it represents. Cafcass was established as an NDPB
only after extensive consultation in which all other options were
explored.[91]
One of the key questions addressed was that of the independence
and accountability of both the organisation and its practitioners
if the service were to enjoy the confidence of the public and
the families and children it serves. It was therefore seen as
essential that the service was able to operate at arm's length
from government. This has become less and less evident, culminating
in Cafcass head office moving into Sanctuary Buildings to share
an office building with its sponsorship department.
ISSUE 2: THE
IMPACT ON
COURT PROCEEDINGS
AND ACCESS
TO JUSTICE
OF RECENT
AND PROPOSED
CHANGES TO
LEGAL AID
28. This section of our submission will focus
on issues affecting access to justice for children and the negative
impact of the LSC's proposed cutting of independent social work
expert witness fees from October 2010. Around 80% of Nagalro's
members currently carry out independent expert witness work in
the family courts. Many have said they will be forced to seek
alternative work after October and their absence will have a significant
impact on court proceedings. The decision to cut ISW fees flows
from the LSC consultation "Family Legal Aid Funding From
2010" in December 2008.[92]
29. The cases where family courts require independent
evidence are characterised by the complexity of the issues and
concern about the adequacy of the evidence provided by others.
In public law this includes cases where local authority evidence
is seriously flawed or absent; Research tells us that approximately
40% of public law cases arrive in court without the necessary
core assessment having been carried out by the local authority.
In these cases courts turn to independent social workers to expedite
proceedings.
30. In other cases the local authority has a
fixed view that it refuses to reconsider; where one or more family
members may have been inappropriately discounted; and/or where
a local authority has behaved inappropriately, without due cause
and has lost the confidence of parties and/or the court. In private
law, courts may require an independent assessment of highly contested
issues of contact and residence in order to be assured that their
decisions protect children's interests.
31. Without the necessary evidence, courts cannot
proceed and lengthy and costly adjournments may ensue. Independent
social workers are seen as an extremely valuable resource by the
courts. However their fees are paid by the LSC rather than the
DfE, and the LSC are very anxious that the DfE pays for all social
work input in the courts either through Cafcass or Local Authority
social work. Hence the decision to cap the fees at the CAFCASS
rates. This is therefore a decision which has nothing to do with
access to justice for children and everything to do with offloading
costs—which, by the MOJ's own admission, they are unable
to quantify—to another Government department. A letter to
Nagalro from The Secretary of State for Justice, Jonathan Djanogly
dated 12 August 2010 stated "that is not possible to provide
an exact estimate of the savings as a result of capping ISW rates".
32. Cases frequently call for specialist social
work expertise relating to managing risk, an understanding of
family dynamics and attachment relationships, and/or assessment
of those with a learning disability, substance misuse problems
or mental health issues as these relate to parenting. Some require
specific cultural knowledge. ISW evidence assists courts to resolve
complex cases more speedily. It can obviate the need for much
more expensive psychological and psychiatric reports. ISW evidence
can thus be very cost-effective and conversely its absence is
likely to increase overall costs across the family justice system.
33. Social work skills related to child protection
are a scarce commodity and the Social Work Task Force recognised
the need to retain experienced practitioners by offering suitable
levels of remuneration and scope for the exercise of expert professional
judgment.
34. The decision to cut ISW fees has been based
on a confused and procedurally inadequate consultation. The LSC
consultation paper concentrated on one specific issue: that of
Rule 9.5 cases where children are made parties to private law
cases. By its own admission, it has no evidence on the numbers
and types of cases in which ISWs are used, the outcomes of these
cases and the likely impact on children's access to justice if
ISW evidence is severely restricted.[93]
Once again the LSC has made a "considerable rod for its
own back" in failing to marshal the evidence before proceeding
with fundamental changes to the system. The LSC has failed to
address the variety, depth and function of ISW use in family court
proceedings and the influence of ISWs on the court's decision-making.
There has been no assessment of the impact on children. There
has been no consultation with children as stakeholders, indeed
there has been continuing failure to even recognise them as stakeholder.
Finally, there has been no assessment of the impact on the timetabling
and completion of court proceedings.
35. Many organisations and individuals who would
have responded did not do so as they were simply unaware, because
of the flawed content, that the proposals applied to them. ISWs
were under the impression the MoJ Expert Witness consultation,
which immediately followed, would consider independent social
work along with all other expert witnesses. The LSC has acknowledged
that there was confusion on this point.
36. It would appear that social workers, alone
of all professionals who provide expert evidence to courts, are
not considered by some to be expert witnesses. This distinction
has no basis in fact and it is impossible to see how such differential
treatment can be justified. ISWs often provide holistic advice
to courts that sets in context the medical and psychological expert
evidence. Medical and psychological expertise is remunerated at
a much higher rate and reduced availability of ISWs will increase
reliance on these much more expensive experts. None provide the
link to family functioning which is the expertise of the independent
social worker.
37. Nagalro, working with BASW and ISW agencies,
has made strenuous efforts to engage with MoJ and LSC to explain
the adverse consequences for child protection of an inadequately
evidenced decision to cut ISW fees and to challenge the flawed
consultation processes. Our experience points up the lack of a
credible independent element in the MoJ and LSC complaints processes.
We have requested that ISWs are included within the remit of the
Expert Witness Review Group, which is looking at the fees for
all other expert witnesses. Given the necessity to reduce the
total spend on expert witnesses, our members ask only that they
be included in the review on the same basis as all other experts.
We have asked the Secretary of State for Justice, Jonathan Djanogly
to review the previous administration's decision and he has declined.,
38. The LSC/MoJ approach to ISW costs is misguided
and unfair. By any reasonable accounting analysis the fees are
set too low to properly remunerate ISWs for their level of experience
and expertise. Nagalro was involved in discussions with Cafcass
when they reviewed their fees for self-employed children's guardians.
A principled basis for fees was discussed, but the rate of £30
per hour (£33 in London) that was finally offered was not
based on these principles, which would have produced a considerably
higher rate. Cafcass has never included home office costs in their
calculations.[94]
Annual increments to fees had not been included by Cafcass for
several years.
39. LSC proposes that ISWs should be paid at
the Cafcass Children's Guardian rate without analysis of the differences
in the roles. Nagalro contends that the ISW role is a different
one, requiring a greater range of entirely independent and specialised
assessment skills undertaken without organisational support or
managerial support. Cafcass limits the scope of the work of children's
guardians. Under its Workforce Development Strategy (2010), Cafcass
will now appoint newly qualified social workers to practitioner
posts and will seek to use unqualified family support workers
to co-work cases. These changes make the comparison between the
work of expert ISWs, who are personally appointed based on reputation,
and Cafcass Children's Guardians even less appropriate.
40. Without ISW expertise, courts may make the
wrong decisions about children because they will lack sufficiently
expert independent advice. Some children are left at serious risk
within their own families and the ISW contribution leads to their
removal to safe care. Frequently the issue is whether family members
could care for children for whom the local authority plan is adoption
and ISW assessments can lead to extended family care for children,
for example by grandparents, removing the need for adoption. The
quality of local authority social work practice and decision-making
is extremely variable across the country, within local authorities
and even within single teams. Access to expert ISWs is therefore
a crucial safeguard for children and a child protection issue.
41. Additionally, the impact of proposed funding
changes on provision of legal aid help for children and parents
is a very grave concern to Nagalro members. The unparalleled loss
of so many skilled and experienced family lawyers will have a
profoundly destructive effect on the operation of the courts.
The "tandem model" of children's guardian and solicitor
forms a key partnership that is an effective child protection
mechanism for children who are at a uniquely vulnerable point
in their lives during care proceedings. Guardians face the prospect
of not being able to find an experienced children's lawyer because
so few firms will exist in some areas. Parents in family court
proceedings, many of whom have significant needs themselves, equally
need skilled representation. Without the experience and commitment
of family legal aid practitioners it is probable that court functioning
will be impaired, there will be more litigants in person and delays
will increase further.
ISSUE 3: THE
ROLE, OPERATION
AND RESOURCING
OF MEDIATION
AND OTHER
METHODS IN
RESOLVING MATTERS
BEFORE THEY
REACH COURT
42. Many Nagalro members are involved in providing
adult dispute resolution and extended dispute resolution procedures,
which include direct consultation with children. These services
are provided by Cafcass as part of the President's private law
programme, introduced in July 2004. The primary aim of the private
law programme is to divert separating parents from long running
and acrimonious disputes through the early provision of a range
of support services. The prime focus of government policy is on
"minimising conflict and supporting good outcomes both for
children and their parents, preferably without recourse to the
courts".[95]
43. Historically, from the implementation of
the Family Law Act 1996 onwards, the lion's share of resources
in private law proceedings has gone towards the expansion of adult
mediation services as an essentially indirect way of supporting
the children involved. This is based on two highly questionable
assumptions:
— First,
that provided separating parents agree
about future arrangements, then the resulting arrangements will
be in the best interests of their children; and
— Secondly,
that parents will act reasonably and always in the best interests
of their children at a time of maximum emotional turmoil and disruption.
44. Recent research findings indicate that these
are not safe assumptions, the impact of domestic violence had
been largely overlooked and the voice of the child is often drowned
by the noise of the parental dispute. NSPCC research[96]
questioned the concentration on the expansion of adult mediation
services and the resulting allocation of the lion's share of available
resources to adult centred interventions around the time of the
court hearing. Research suggests that an over reliance on what
is essentially an indirect way of helping children may be at the
expense of the development of a continuum of direct and indirect
support services to the increasing numbers of children—currently
approximately 250,000 a year—who are suffering the negative
effects of family breakdown.
45. Although the Children Act 1989 brought together
public and private law proceedings in one unifying piece of legislation,
it failed to provide a unified approach to the representation
of children and their interests. This was based on the erroneous
assumption that in private law cases in which parents are divorcing
or separating, there will never be a conflict of interests between
the wishes of the parents and the long term safety and interests
of the child. For the vast majority of children, thankfully, this
will be the case, but an inspection of Cafcass private law practice
published in August 2006 emphasised the vulnerability of children
who are the subject of Cafcass welfare reports in private law,
some of whom may also be children at risk or in need in terms
of the Children Act 1989. For the 10% of children of separating
couples who have their residence and contact arrangements ordered
by the court, their childhood may by punctuated by repeated and
acrimonious contested court proceedings over which they have no
control and in which most have no voice.
46. Parliament has agreed that children in private
law proceedings should have access to separate representation
more frequently than they do at present and has twice passed legislation
to address this problem, namely S64 Family Law Act 1996 and s122
Adoption and Children Act 2002. Neither piece of legislation has
yet been implemented, in spite of a considerable body of research
evidence which indicates that the amplification of the voice of
the child in proceedings can break up the entrenched adversarial
dyad between parents in complex and long running disputes and
can act as a catalyst for change by re-focusing both parents attention
on the best interests of their child and the need to put their
needs before their own sense of grievance.
47. Notwithstanding the reluctance of all adults
and professionals to involve children in adversarial proceedings,
it would be dangerously naïve to assume that all children's
private law matters can be decided through mediation processes
in which their separate interests may be overlooked. Mediators
can do little if parents agree arrangements which are clearly
not in their children's best interests, but which stop short of
significant harm.
48. The prime purpose of state intervention into
private family life is to limit the collateral damage to children.
There has, however, been little analysis of how effective mediation
and other more general interventions are for the children concerned.
Once parents have agreed arrangements and the court proceedings
are concluded, professional attention wanes. What is urgently
needed is the development of a range of direct support services
for children and young people suffering the negative effects of
family breakdown, both before, during and after parental separation.
ISSUE 4: CONFIDENTIALITY
AND OPENNESS
IN FAMILY
COURTS, INCLUDING
THE IMPACT
OF RECENT
CHANGES IN
THE CHILDREN,
SCHOOLS AND
FAMILIES ACT
2010
49. Nagalro supports efforts to make the decisions
made in the family courts more transparent. This should not, however,
be done in a way which allows the media and the general public
to identify or increase the distress of already highly vulnerable
children and we are opposed to any relaxation of rules on the
publication of sensitive personal information.
50. Nagalro, together with 21 other organisations
who signed a joint position statement as an Interdisciplinary
Alliance for Children, had severe reservations about the content
of Part Two of the Children Schools and Families Act 2010. We,
in common with the other Alliance members, do not believe that
the provisions will be sufficient to protect the welfare and safety
of the children. Our concerns are exacerbated by the fact that
the Act was passed in something of a rush during the "wash
up" process in the final days of the last parliament. There
was therefore no time to properly debate the final version of
the bill, which has resulted in something of a hotch-potch of
confusing provision, about which nobody seems very happy and which
is likely to be extremely wasteful of scant resources as lawyers
attempt to clarify the new law.
51. In practical terms, we are particularly
concerned about the court's capacity to identify "any
risk which publication of the information would pose to
the safety or welfare of any individual involved", as
stated in s14 (4), on the basis of what may be limited or incomplete
evidence from children themselves.
52. Nagalro's view remains that the changes were
premature in that there has been no time to undertake either a
proper evaluation of the changes to media access to Family Courts,
introduced in April 2009, complete evaluation of the Family Court
Information Pilots looking at anonymous judgements or to undertake
appropriate impact assessments of the effect of the new provisions
on the children concerned.
53. Recent research evidence on the views of
children, commissioned by the Office of Children's Commissioner,
showed that children fear the identification or themselves and
their families. Almost all the children in the independent study—(96%)
said that once children are told a reporter might be in court
they will be unwilling/less willing to talk to a clinician about
ill treatment or disputes about their care, or their wishes and
feelings.[97]
54. It would be extremely counterproductive
if children were to be inhibited by such additional concerns at
a time of maximum vulnerability and stress. Young people have
highlighted the fact that what used to be yesterday's fish and
chip paper is now eternally available on the internet and that
once personal information is in the public domain, it is now virtually
impossible to eradicate it. This is an aspect of transparency
which the Act fails to address and it also has implications in
relation to compliance with the rights of the child conferred
by Article 12, UNCRC.
55. The two key questions to be answered in relation
to this legislation are first—who benefits and secondly
whose needs are paramount? From the point of view of the hundreds
of thousands of children who have their future lives determined
by the family courts in extremely distressing and often traumatic
circumstances, what is important to them is to be able to understand
why and how the decisions were made and on the basis of what information.
This is the information can be enormously important in allowing
children to make healthy adjustments in their adult lives and
to make sense of what has happened to them.
56. If this legislation is implemented as currently
drafted, it will increase both the risks and distress to children
and will also result in considerable extra costs to the courts
and the family justice system.
September 2010
87 House of Commons Justice Committee-Family Legal
Aid Reform-Conclusions and Recommendations. para.70 page 29 and
para14 p.32 -. TSO.July 7 2009 Back
88
Nagalro, (2010) "Time for Children", available
from website www.nagalro.com Back
89
GSCC hearing on 3 September 2010 Placehttp://www.gscc.org.uk/Conduct/Conduct_hearings/recently_concluded_hearings/ Back
90
Voice (2005) "Start with the child, stay with the child,
A blueprint for a child-centred approach to children and young
people in public care", London Back
91
Support Services in Family Proceedings - Future Organisation of
Court Welfare Services. Consultation paper. July 1998. Department
of Health, Home Office, Lord Chancellors Department, Welsh Office.
Reference number LASSL(98) 11 Back
92
http://www.parliament.uk/deposits/depositedpapers/2008/DEP2008-3118.pdf Back
93
Alan Pitts-MOJ head of Family Legal Aid speaking at a conference
in London on March 25 2010, confirmed at a subsequent meeting
with the MOJ and LSC in April 2010 Back
94
Jane Booth, Cafcass Corporate Director, in meetings with Nagalro. Back
95
('Parental Separation: Children's needs and parent's responsibilities.
Crown Copyright: CM 6273. DCA and DfES 2004) Back
96
Your Shout Too - a survey of the views of children and young
people involved in court proceedings when their parents separate
or divorce'. Timms, Bailey and Thoburn. NSPCC 2007 Back
97
Media access to family courts: views of children and young people.
J Brophy (2010). London. Office of the Children's Commissioner.
England Back
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