Written evidence from the Interdisciplinary
Alliance for Children (FC 62)
PROVISION OF A WELFARE SERVICE FOR COURTS
COST COMPARISONS:
PRE AND
POST CAFCASS
1. The core functions of Cafcass are to give
children an independent voice in legal proceedings, and to advise
and assist the court in achieving the best possible outcome for
those children. In public law cases Cafcass must ensure that children
are protected against poor social work practice and decision-making.
Whilst the difficulties in obtaining timely Cafcass reports in
private law cases are also severe, this submission focuses primarily
on the chronic failure of Cafcass to offer adequate representation
to abused and neglected children who are the subject of care proceedings.
2. The hierarchical management culture of Cafcass,
combined with its hostility to the independence and status of
the guardian, has had a disastrous effect on the representation
of children. From its inception, Cafcass has reduced the professional
standards, capacity and morale of the pre-existing service—a
service that the chief executive now refers to as "the Golden
Age". Although one of the principal aims of government in
establishing Cafcass was to produce savings through a unified
and managed service, Cafcass now costs more than twice as much
to run as the three services which preceded it—currently
£138 million in 2009-10 compared to £66.5 million in
1998. Adjusted for inflation (approximately 34% from 1998-2010),
this represents a cost increase in real terms of 66%.
3. Cafcass blames its failures on "the relentless
surge" in demand for public law and private law reports.
In fact, the demand for public law guardians is lower than it
was in 1997-98 (see paragraph 5, below). The number of public
law cases requiring a guardian in 1998 was 8,900; in 2009-10 it
was 8,684. Private law requests have however increased. In 1997,
the number of private law welfare reports was 36,100; in 2009-10,
the number of private law requests received by Cafcass was 44,722.
(However the introduction of the President's private law programme
has meant that there has been a substantial reduction in the number
of s7 reports being prepared.)
The Guardian Service Pre Cafcass
4. The three services offered investigation,
representation and advice to the court in children's cases; these
were the (probation) court welfare service (investigating and
reporting in private law proceedings concerning children), the
guardian panels (those focused on public law proceedings including
adoption, providing investigation, reporting and independent representation
of children in cases of maltreatment by parents/others), and the
Official Solicitor (child representation, investigation and reporting
in complex, mainly High Court proceedings). The combined annual
cost of these services in England for 1997-98 were estimated by
government to be £66.5 million (DOH, HO & LCD (1998)
Support Services in Family Proceedings: Future Organisation of
Court Welfare Services, Consultation Paper, para 5.1). (Unless
otherwise stated, all paragraph references below refer to this
document.)
5. In 1998, Guardians were appointed in
about 13,300 cases, of which about 4,400 (33%) were adoption
proceedings. The remainder (about 8,900 cases) were care
proceedings (ibid; para. 1.25). In 2009-10, Cafcass
statistics show that public law requests for guardians
were 12,102, of which 8,684 were care cases.
In 1997, the Family Court Welfare Service, operated
by the Probation Service, undertook about 36,100 reports
per year (para. 1.14). In 2009-10, Cafcass received 44,722
requests for private law reports (Cafcass Annual Report, July
2010 page 10). Thus, demand for public law guardian services is
lower than it was in 1997-98. There has however been a rise of
about 8,600 in the number of private law reports.
6. Care applications have always been subject
to peaks and troughs. This was largely managed pre-Cafcass by
a targeted deployment of the self-employed workforce, who operated
from 59 panels spread throughout England and Wales.[98]
7. At March 1998, there were an estimated 1,011
guardian panel memberships in England. Of this total, 843 (approx.
80%) were self-employed. About 70 persons in England and Wales
were designated panel managers, supported by 92 clerical and administrative
staff (paras 1.24 and 1.25). The total budget for the guardian
service was £26.193 million, of which £18.5 million
(70%) was spent on guardians' salaries, fees and expenses (para.
5.6). Waiting lists were rare and were easily absorbed by guardians
from neighbouring panels.
8. Guardians were highly qualified and experienced:
"One characteristic of the most of the current practitioners
is the length and breadth of their expertise in family, child
and court-related areas, linked to formal academic qualifications."
(para 3.28).[99]
9. It was common ground that the guardians offered
a very high level of service to the children and the courts: "The
current service provided by the Family Court Welfare, Guardians
ad Litem and the Official Solicitor's Office are highly regarded
by the courts and many other agencies with whom they have contact.
This is also evidenced by inspection reports of the Family Court
Welfare and the Guardian Services. That professionalism is recognised
and valued. It needs to be sustained and where possible enhanced."
(para 1.6); "The role of the guardian ad litem in particular
is widely regarded as one of the major success stories of the
Children Act." (para 4.4).
The Guardian Service Post Cafcass
10. Even before its inception in 2001, Cafcass
was opposed the use of self-employed guardians, and the guardians'
professional association, the National Association of Guardians
ad Litem and Reporting Officers (Nagalro) successfully sought
judicial review of Cafcass on this issue. Nonetheless, opposition
to the use of self-employed guardians continued. In 2003, the
House of Commons Select Committee observed that "the increase
in demand—which did not start post-Cafcass and should have
been anticipated—and the shortage of appropriately qualified
staff, made it all the more important that Cafcass held on to
the staff it was inheriting. The protracted dispute [with self-employed
guardians] damaged relations with experienced guardians and staff
that the organisation desperately needed in order properly to
fulfil one of its core functions…. It is important that,
as well as using and developing its employed guardians, Cafcass
senior management embrace the principle of a mixed economy and
repair relations with self-employed guardians." (paras
8 and 11). This advice was ignored. In 2009, despite
increasing waiting lists, Cafcass issued a directive that no further
cases would be allocated to self-employed guardians. By March
2010, the number of self-employed guardians had reduced to 311.
11. The most recent Cafcass Annual Report (July
2010) reports an annual budget of £131.2 million and an expenditure
of £140 million. Almost half of Cafcass employees (968
out of 2,098, or 46%) are not engaged in direct work
for courts with children and families. Although Cafcass asserts
that £78 million (60%) of its budget is allocated to remuneration
of "front-line staff", this definition currently includes
all regional staff: managers, administrative staff and practitioners
in both public (Guardians) and private law (Family Court Reporters)
(increasingly referred to collectively as "Family Court Advisors"
or FCAs).
12. The Cafcass Annual Report and Accounts for
2009-10 show that Cafcass employs 2,098 staff of whom 1,130 are
FCAs (qualified social workers). Allowing for around 81 Family
Support Workers (not qualified social workers) as shown in the
2008-09 Report and Accounts, this leaves some 887 managers and
administrators, a ratio of nearly four back-up staff for every
five qualified practitioners. The corporate head office in London
employs as many as 174 permanent and temporary staff. These figures
suggest that less than half the £87.6 million staff costs
relate to qualified practitioners, with their employment costs
representing only about 30% of Cafcass's total grant allocation
of approximately £131 million in 2009-10.Agency workers and
self-employed contractors each account for around another 5% each
making a total of no more than 40% of the total budget.
13. Many of the most experienced self-employed
guardians have been forced out of the service or have taken early
retirement, so that hundreds of years of experience have been
lost to the family courts. In March 2010, the number of self-employed
guardians in England remaining was 311, compared to a total of
1,140 employed FCAs. Entry-level qualifications for guardians
have been reduced (to three years' post qualifying experience)
and Cafcass proposes to further reduce entry requirements; this
means that newly qualified social workers with no experience will
be able to be employed by Cafcass. Further, Cafcass plans to extend
the use of unqualified family support workers to carry out some
of the tasks of the guardian.
14. Cafcass
now officially defines a case as "allocated" when it
is "either a case substantively allocated to a named practitioner
or a case allocated on a duty basis to a named Cafcass practitioner"
(Cafcass Annual report 2009:27). The fact that a case is "allocated"
does not necessarily mean that the children have been seen or
that they are receiving a service and currently there is no key
performance indicator giving government—or indeed the public—this
information.
15. Employed
guardians have now been allocated so many cases that many feel
they are unable to offer even a minimum service to the children
they represent. Workload agreements in 2004 envisaged about 12
cases per employed guardian. According to the National Association
of Probation Officers (NAPO), employed practitioners are now carrying
an average of 25 cases. In some cases, their caseloads far exceed
this figure. This places the guardian in an invidious position,
as the statutory duty to investigate and report in each case is
placed squarely on his shoulders. Anxiety is very high and morale
is very low. The number of employed guardians leaving the service
is increasing, and NAPO report staff turnover rates of between
20 and 30% in some areas.
16. The workload for employed staff has been
steadily increased from a norm of 12 cases—established by
a workload agreement of 2004 as a reasonable caseload—to
up to 35 cases in some instances. This has resulted in unacceptably
high rates of sickness and stress in both front-line staff and
management. With overall absence through sickness running at 11.6
days a year, it is likely that the figure for front line practitioners
is over 15 days (three weeks) and management has been forced to
introduce "well-being days" and "counselling days"
to help to relieve pressures on staff. Over 11% of staff have
needed counselling (all figures are from the 2009-10 Report and
Accounts).
17. In his evidence to the Public Accounts Committee,
Anthony Douglas, the Cafcass Chief Executive, confirmed that "in
our teams with the highest caseloads they are carrying around
35 active cases: probably at the limit of what you can carry to
do anything meaningful on any one case. It's a question of whether
our workforce as a whole can get up to that benchmark.[100]
18. Cafcass appears to have imported a flawed
and now largely discredited model of line managed accountability
from local authorities. This clear change in operating model and
ethos was confirmed by Anthony Douglas in his evidence to the
Public Accounts Committee on 7 September 2010—"if
you have been working for the last three years on a local authority
duty desk, you're more used to the kind of work we do have to
do now……We've had to make a change, added to by recent
pressures to being effectively a front line duty based operational
service".[101]
19. This is not only inappropriate, but incompatible
with the current legislative framework; the latter provides a
direct line of professional accountability for children's guardians
with the court as well as to Cafcass as their employer. Cafcass
has never fully understood the nature of the dual accountability;
this has resulted in an inappropriate fettering of professional
discretion and has had a negative impact on the court welfare
services received by children.
20. A national survey of members by NAGALRO (see
below para 22) demonstrated that 70% of self-employed members
had spare capacity, however these practitioners continue to be
substantially underused by Cafcass and many have now left the
service. Instead, numbers of more expensive—and in some
cases inexperienced agency staff—have greatly increased.
Agency staff are aguably less able/likely to raise pertinent questions
about the quality of service provided to children and families
or the way in which the role is being re-defined. Cafcass's Annual
Report and Accounts for 2009-10 shows that, in a year when total
grant support increased by over 15% from £116 million to
£134 million, the budget for self-employed contractors was
reduced from £7.514 million in 2008-09 to £6.976 in
2009-10. At the same time, the budget for agency staff has increased
by 139% to £6.101 million. This clear preference for the
use of agency rather than the experienced self-employed workforce
demonstrates that the decision was driven, not by resource constraints,
but by a clear organisational policy.
21. Figures given by Dawn Primarolo (then Minister
of State, Children Schools and Families) in answer to a parliamentary
question on the use of SECs in the preceding six months indicated
the lack of use of SECs in many parts of the country.[102]
Nagalro Survey
22. The national membership survey by NAGALRO
(Time for Children, January 2010) found that 40% of care cases
in the survey sample had been unallocated for more than two months,
including 10% for over three months. Some 2% were unallocated
for more than five months. In early autumn 2009, a conservative
estimate was that there were over 860 cases awaiting allocation
in the offices from which the participants reported.
23. Guardians were concerned about the limitations
of the "advisory" or "duty guardian" role,
particularly about the quality of advice that could be offered
to the court, and the dangers posed to the child by an "arm's
length" process of risk assessment. (para 1.2). There is
also lack of continuity for the child. Over 80% of respondents
said that they were being instructed by Cafcass managers to prioritise
tasks other than the work done with and for the child. This is
echoed by reports that managers in some areas are instructing
guardians not to make home visits and to interview children and
parents by telephone.
24. Lack of opportunity for the guardian critically
to appraise and, if necessary, challenge a local authority's actions/arrangements
for a child at an early stage was another major area of concern:
"Some of the case examples in the survey indicate that
the local authority case was being accepted uncritically, raising
the fear that the wrong decisions may have been made and the options
for the child not fully explored. If too much time elapses between
the child's removal from home and the final placement decision,
then the outcomes may be determined through the passage of time
rather than on the original facts of the case."
(para 1.2)
25. Cafcass's current operational target is to
offer only a "safe minimum service" via a "proportionate"
model of service delivery. This has placed intense pressure on
staff profoundly worried by the changes. Nagalro summed up their
concerns as follows:
26. "The concerns raised by respondents
in relation to the fettering of their professional discretion
are indicative of the gap which is opening up between the organisational
target of the "safe minimum standard" of service delivery
and the statutory duty of the children's guardians under the Children
Act 1989—to give paramount consideration to the child's
best interests. Practitioners are rightly concerned that the present
systems may put them in breach of either their professional codes
of practice or their statutory duty. The concept of a "safe
minimum" is essentially a subjective rather than an absolute
concept, dependent on different local and managerial definitions.
This has resulted in considerable confusion and anxiety for front-line
staff concerned about potentially dangerous practice…The
case examples given by the survey respondents vividly illustrated
the anxiety and stress experienced by practitioners who are all
too acutely aware of the vulnerability of hundreds of children
who are waiting for a guardian." (para 1.7)
27. Indications are that what is needed is an
alternative organisational and operational model for the delivery
of family court welfare services to children and their families.
Children involved in family court proceedings are the most vulnerable
group in our society. Many of them have suffered grave harm. They
need and deserve an effective service. The comparatively modest
costs of the previous service indicate that a return to those
standards and a better service delivery model that existed pre-Cafcass
is not a pipe dream or a "Golden Age". It is an affordable,
do-able alternative to an organisation that now spends less than
half its annual budget on the salaries and fees of public and
private law practitioners and in which direct work with vulnerable
children and their carers is no longer a priority.
March 2011
98 Overall 59 panels (54 in England, 5 in Wales)-see
Brophy J, Wales CJ and Bates P (1997) Training and Support in
the Guardian ad Litem and Reporting Officer Service: Research
Report: London: DoH, Welsh Office, TCRU; DoH (1995) The Guardian
ad Litem and Reporting Officer Service, Annual Reports 1994-95:
An Overview. London: Department of Health. Back
99
For example, in 1997 some 37% had/were engaged in post qualifying
studies leading to a higher degree/diploma relevant to guardian
work, half the workforce had been with their current panel for
at least six years indicated a stable workforce, a majority worked
for one panel only, most had considerable experience as social
workers prior to their appointment as a children's guardian-50%
had at least 15 years in social work prior to their first appointment-many
had worked at a senior level (see, Characteristics of the Workforce
and Table 3 Brophy et el. op cit. Back
100
See uncorrected transcript, 7 September 2010. p.27-Public Accounts
Committee Session: Cafcass response to increased demand for its
services, responses of Anthony Douglas to Q83. Back
101
Public Accounts Committee ibid; page 26: response of Anthony
Douglas to Q82. Back
102
Department for Children Schools and Families. Written answers
and statements, 24 November 2009. Hansards (Citation: HC deb.
24 November c96W). Back
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