Operations of the Family Courts - Justice Committee Contents

Written evidence from the Interdisciplinary Alliance for Children (FC 62)



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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Prepared 14 July 2011