Operations of the Family Courts - Justice Committee Contents

Supplementary evidence from Cafcass (FC 75)

MARCH 2010


1.  On 1 October 2010 the President of the Family Division and the Chief Executive of Cafcass signed a joint agreement ("The Agreement") to build on the successes of the President's Interim Guidance[104] in developing and operating a partnership approach to address delays in the allocation of Children's Guardians in Public Law proceedings. A copy of the Agreement is attached at Annex A of this paper (not printed).

2.  The Ministry of Justice and the Department of Education supported the Agreement and gave a commitment to monitor its effect with a view to making an assessment as to whether it had been successful in achieving its four stated aims:

  • to build on the inter-agency working which the President's interim guidance had recommended;
  • to reduce the number of cases where a children's guardian had not been allocated to a case;

—  to assist guardians make the best use of their time; and

  • to minimise the use of Cafcass nominated "duty advisers".

3.  Due to the collaborative nature of the Agreement it was jointly agreed with the President's office that responsibility for monitoring would benefit from the oversight of the inter-agency National Performance Partnership (NPP), which includes senior representatives from MoJ, DfE, Cafcass, HMCS and the judiciary.

4.  This paper is therefore a policy based assessment of the effect of the Agreement on meeting those four stated aims.


5.  The context into which, the need for the Agreement has arisen is an increase in applications for care and supervision proceedings, which has been sustained since the end of 2008, with recent forecasts from both MoJ and Cafcass suggesting that these high levels of applications will remain for the foreseeable future.

6.  To illustrate how these increased applications are manifesting in the continued high demand for Cafcass services, the chart below details the number of requests for children's guardians in Public Law cases[105] over the last five years. Notably in the current financial year to January 2011, monthly requests for guardians exceeded record levels in seven out of a possible 10 months.

7.  To illustrate how these increased volume of applications are impacting on the current workload of the courts, the graph below shows the growth over the last 12 months in the number of care and supervision cases[106] currently before the courts awaiting a determination.

8. The increase in cases coming into the system is coinciding with an increase in the length of time taken to deal with care cases. Detailed below is the average case duration of care and supervision proceedings, shown as a moving 12 month average. This shows a long term trend of increase in the average length of proceedings in both the county court and FPC jurisdictions.

9.  In short, more cases are coming into the system, they are taking longer to deal with, and all agencies including HMCS, Cafcass and local authorities are having to manage these increased workloads within existing resource constraints.


10.  To make an informed assessment of how the four aims of the agreement had worked in practice it was necessary to draw from a range of sources. The National Performance Partnership agreed that evidence to monitor the use of "duty advisers" and to monitor the number of cases with no guardian allocated would be available from exiting Cafcass datasets. This would be supplemented by relevant contextual datasets from HMCS.

11.  As no statistical data existed on whether guardians were able to "make the best use of their time" nor was there statistical information on how many local agreements had been established, it was decided that the quantitative data would need to be supplemented by qualitative evidence on how the local agreements had worked in practice.

12.  In conjunction with the President's office, the MoJ policy team designed a short online survey to collect a range of qualitative evidence relating to the four aims of the Agreement. In addition, information was also collected on the key underpinning features of the Agreement such as the operation of the Public Law Outline and judicial continuity. The surveywas open for four weeks between 14 January and 11 February 2011 and responses were accepted in hard copy or by email.

13.  MoJ sent copies of the survey to chairpersons of the recently established Local Performance Improvement Groups (LPIGs). The multi-agency nature of LPIGs was thought useful in ensuring that feedback on the effect of the local agreements was assessed, taking into account the views of all agencies. As the judiciary were not necessarily represented on LPIGs, it was agreed with the President's office that the survey would also be sent to each of the Designated Family Judges in England. A list of DFJs and their respective Cafcass service areas are detailed at Annex B and Annex C.

14.  The Table below details the responses received.

Total number of LPIG areas: 45
Number of LPIG areas where a response was received from either the DFJ, the LPIG or both: 36[107]
Response rate:80.0%

15.  Where a response was received from both the DFJ and the LPIG chair for an area, information was combined and considered as a joint response.

16.  Questions posed in the survey were broad in nature and many of the responses elicited a very detailed and thorough reply. For the purposes of analysis and presentation, responses have been grouped into general themes, with a sample of specific quotes or particular examples of good practice extracted and highlighted in this paper.

17.  A separate agreement exists between Cafcass Cymru and the Judiciary in Wales. As the National Performance Partnership does not have oversight for Wales, analysis in relation to Cafcass Cymru is not included in this policy assessment.[108]


Inter-agency working

18.  The Agreement placed emphasis on the need for all agencies involved in the care proceedings system to work co-operatively and to build on the successful arrangements established under the interim guidance. Specifically, paragraph 4 of the Agreement gives encouragement for regular meetings between local agencies and the judiciary to share information and to co-ordinate efforts to improve the system locally. Results from the survey showed that without exception, areas had in place a discussion forum to discuss family business issues and that group was regarded as being effective in achieving the types of co-operation envisaged by paragraph 4 of the Agreement.

19.  One of the key successes of the Agreement, highlighted in many of the responses from DFJs, was the increased communication that had resulted between the judiciary and Cafcass. Whilst many observed that inter-agency working had always been strong, there was an acknowledgement that the current increased workloads had required a greater degree of co-operation and sharing of information to ensure cases could be dealt with without undue delay. Illustrative examples are listed below:

  • "What has been particularly successful is the extent to which the various agencies have been prepared to work together to make local arrangements work. With increased awareness that effective communications are vital, the landscape has changed dramatically".
  • "There has been a new era of co-operation!—communications with Cafcass have improved, and a new willingness and energy to respond to the PLO requirements has resulted in the disappearance of most of the old problems".
  • "Following the President's Interim Guidance we initiated very productive meetings with Cafcass which have resulted in arrangements which have eliminated the backlog. These arrangements continue under a Joint Agreement between Cafcass' Head of Service and the DFJ. A very productive dialogue between Cafcass and the judiciary exists and regular meetings take place to deal with issues as they arise".

20.  Whilst the Agreement gave a mandate for DFJs and Cafcass management to establish local arrangements (or for them to continue) it did not necessarily follow that a local agreement would need to be made. Therefore one of the key pieces of evidence to establish was in which areas there had been a need to establish a local agreement between Cafcass and the judiciary to assist with the timely allocation of guardians.

21.  This was established by way of a question in the survey which asked respondents to state whether they were aware of any agreement being in place regarding the use of "duty advisers", pending the allocation of a children's guardian.

22.  As can be seen from Fig 4 above, over half of the responses indicated that no such agreement was in place in respect of duty advisers. The most cited reason was because delays in the appointment in guardians had either been reduced or eliminated, obviating the need for duty advisers. A further 26% noted that whilst an agreement was in place, it was only invoked in exceptional circumstances because Cafcass routinely were allocating a guardian within the timescales defined in the PLO.

23.  In the minority were significant areas such as Greater London, where it is reported that an agreement in respect of the use of duty advisers is invoked regularly. However, even here the DFJ reported that "Cafcass have certainly greatly improved, on average, the date on which a guardian is appointed to cases".

Reduction in duty advisers and cases where no guardian is allocated

24.  As detailed above, under the terms of the Agreement there is provision for local areas to establish arrangements with Cafcass to nominate "duty advisers" to assist the court in care cases, pending the appointment of a Children's Guardian. The purpose of these arrangements is to ensure that in times of high demand, Cafcass are able to provide advice to the courts in a timely way.

25.  Cafcass currently monitor the use of duty advisers by collecting management information on the allocation status of guardians upon receipt of a care application. For each application received, Cafcass will record the case under the following allocation categories:

—  Unallocated—This category should only comprise brand new cases where no officer has been appointed to a case.

—  Duty Allocated—This category comprises where Cafcass will both react to incoming information and also take pro-active steps at appropriate points in time to review the status, needs and level of priority of the case.

—  Allocated (substantive)—cases where the named worker will both react to incoming information and take appropriate pro-active steps and, in addition, will undertake the work that is set out in the case plan, and also in accordance with the courts' requests/directions. A substantive allocation therefore includes the production of the case plan and any required reports for the case. A substantive allocation is also an appointment of Children's Guardian by the court in s31 care, supervision and other relevant Public Law cases.

26.  The graph below shows monthly snapshots over the past year to demonstrate the success in reducing the number of cases where a children's guardian remained unallocated—from 689 in December 2009 to 39 in December 2010. Cafcass has also decreased the number of cases allocated on a duty basis, from a high of 1,121 in May 2010 to 431 in December 2010.

Dec-09Jan- 10 Feb-10Mar-10 Apr-10May-10 Jun-10Jul-10 Aug-10Sep-10 Oct-10 Nov-10 Dec-10
Substantive9,98110,090 10,38310,51810,760 10,97411,24311,493 11,60911,98612,256 12,36612,406
Duty676716 8509911061 112110491049 1017727568 435431
Unallocated689549 430474551 422210143 15913045 1839
Total workload11,346 11,35511,66311,983 12,37212,51712,502 12,68512,78512,843 12,86912,81912,876

Dec-09Jan- 10 Feb-10Mar-10 Apr-10May-10 Jun-10Jul-10 Aug-10Sep-10 Oct-10 Nov-10 Dec-10
Substantive88.0%88.9% 89.0%87.8%87.0% 87.7%89.9%90.6% 90.8%93.3%95.2% 96.5%96.3%
Duty6.0%6.3% 7.3%8.3%8.6% 9.0%8.4%8.3% 8.0%5.7%4.4% 3.4%3.3%
Unallocated6.1%4.8% 3.7%4.0%4.5% 3.4%1.7%1.1% 1.2%1.0%0.3% 0.1%0.3%

27.  As detailed at paragraph 6 of this report, it is important to repeat that this improvement has been achieved in the context of record demand for Cafcass services, as a result of the continuing rise in care applications received by Cafcass since November 2008.

28.  Cafcass also monitor the length of time it takes to allocate a guardian on a substantive basis by monitoring the % of substantive appointments that have been allocated by day 45 of a case. Day 45 is by when the PLO envisages that a case management conference will have been fixed. The chart below shows that progress has also been made against this measure during 2010, with Cafcass allocating 91% of care cases on a substantive basis within 45 calendar days, compared to 72.2% in December 2009.

29.  Supporting the trend seen in outstanding case data from HMCS (see Fig 2), the evidence from Cafcass data sets is of a steady increase in the size of the overall national case workload ("live" cases yet to be concluded). This shows that Cafcass are now dealing, on a substantively allocated basis, with around 24% (or 2,400) more care cases in December 2010 compared to December 2009. Several of the survey responses expressed concern about this rise in overall workload, drawing a conclusion that if there has been no increase in the number of Cafcass staff, then logically individual workers must be managing much higher caseloads.

Impact on performance

30.  To supplement and to provide reassurance with respect to the quantative data, respondents to the survey were asked to give their general views on whether they thought the agreement had made a positive impact on performance, including whether they thought delay in the appointment of guardians had been reduced and whether case lengths had been reduced.

31.  This question was constructed so as to gather general views on whether the agreement had made an impact on performance and may have been framed too broadly as a variety of responses were received. Whilst most responses were positive, the reasons for the divergent nature of responses may include:

  • As many areas had already indicated they did not experience delay in the allocation of guardians and did not have any Agreement in place for duty advisers it follows that there would be no impact on performance.
  • The concurrent nature of the Interim guidance and the current Agreement may have made it difficult for respondents to attribute performance improvement directly to the Agreement.
  • Respondents were surveyed in January 2011 which only allowed for three months since the Agreement became operative, making it difficult to draw any firm conclusions on the effect on performance.

32.  For ease of analysis responses have been grouped into five broad themes. These show support for the trends in the statistical data, as the majority of responses indicated that the principle benefit of the Agreement had been the elimination of delays in the allocation of children's guardians. Also concurrent with evidence given about local agreements not being required in respect of duty advisers, Cafcass were not cited as an important reason for delay which effected performance in about 1/3 of responses to this question.

Agreements made in relation to managing guardian provision

33.  To make an assessment on whether the fourth aim of the Agreement had been made, that of "assisting guardians to make the best use of their time", a question in the survey asked respondents for intelligence on whether the Agreement had resulted in the court identifying cases, in accordance with paragraph ten of the Agreement, where there were no tasks for the guardian to undertake for specific periods. This included an excusal of attendance at particular hearings and the court being specific about the amount of work the guardian needed to do for a set period of time.

34.  70% of respondents responded to say that an agreement was in place with respect to paragraph 10, however it had limited application and on the whole was dealt with on a case by case basis, upon request by the guardian. There was a minority of respondents who had reservations about the court being too instructive to guardians, and felt that it was for individual guardians to determine what work was needed in a case.

35.  Specific examples given about how consensus had been reached to ensure that Children's Guardians are able to make the most effective use of their time include:

  • "Cafcass is continuing to work closely with the judiciary and other court representatives to develop a common understanding of the need to clearly define specific tasks of the CG within individual cases. The Cafcass view is that this is fundamental to ensuring sustainability."
  • "The President's guidance has generally been helpful in its totality. At hearings, there is an expectation that there will be an analysis of what a report should address and whether there should be periods when the Guardian has no tasks to be undertaken... Courts are also mindful as to whether Guardians should be excused attendance so that resources are saved."
  • "Judges are readily inclined to excuse a Guardian's attendance at a future hearing, provided proper instructions can be given to a Children's advocate."

Performance management

36.  Just prior to the Agreement coming into force on 1 October 2010, The Government wrote to all HMCS areas asking for Local Performance Improvement Groups to be established, to bring together local representatives from agencies within the family justice system with the objective of identifying the principal drivers of delay in their area and to work collaboratively to address them.

37.  It was not necessarily assumed that there would be judicial involvement in these groups, in view of their narrow focus on performance, however a wide discretion was afforded to local areas to convene groups according to local needs. To establish how areas had integrated the LPIG locally, the survey asked respondents to provide information on what links had been established between the judiciary and their respective local performance improvement group.

38.  As would be expected all responses to this question indicated that Designated Family Judges are actively involved in performance. A variety of examples were given of the various structures and mechanisms which facilitate the judiciary's involvement in performance improvement initiatives.

39.  With respect to LPIGs it is encouraging to note that in over 70% of those areas that responded the DFJ is either actively involved in meetings or receives feedback on the work of the group.

40.  Specific excerpts from the survey responses to this question include:

  • "The DFJ and a DJ both sit on the LPIG. The DFJ is closely involved with all aspects of performance and receives regular updates on specific initiatives to drive up performance. With respect to Cafcass the LPIG has helped keep a close eye on the management of the backlog and the level of service but also helped to foster a more co-operative and open relationship in place of the somewhat fractured communication in recent times."
  • "The DFJ is looking at delay problems in the FPC and has arranged to observe case management hearings conducted by legal advisers and the lay bench to see if any advice is necessary to progress cases more effectively."
  • "A monthly working lunch with the care ticketed judiciary, listing officer and the court manager has been effective in improving practice in relation to listing, recorder work, dealing with special arrangements for particularly difficult cases."

41.  In some responses there was criticism about the quality of the management information available to enable decisions to be made about workloads. This has been noted previously in recent studies of the family justice system[109] and is being currently being considered by the Family Justice Review.


42.  The Agreement reiterates the importance of the Public Law Outline being implemented effectively by local areas and is cited as a key dependency to its success. As such the survey sought to gather views from respondents on whether they thought that cases were being managed, listed and progressed in accordance with the PLO, and if not, what were the barriers which were frustrating this expectation.

43.  Whilst all responses were confident the PLO was being operated effectively, a catalogue of reasons was cited as to why cases could not be progressed in line with the PLO's expectations. These are listed in order of the number of incidences cited by respondents:

  • Availability, instructions of, numbers of, and delay in filing of expert evidence reports.
  • Late emergence of family members wishing to be assessed as potential carers.
  • Local authorities not completing work pre-proceedings or not to a high enough standard.
  • The sustained increases in volume of workload received by the family courts throughout most of 2009 and 2010.
  • Compliance with court directions particularly from local authorities and parents not keeping appointments or giving instructions to their solicitor.

44.  These reasons are consistent with previous studies on the care proceedings system, with the exception of the reference to workload volumes over the last two years, which is a relatively recent phenomenon. The period between CMC and IRH was identified as the primary area for PLO timetables to slip (such as in the research carried out by Judith Masson).

Judicial continuity

45.  The PLO makes clear the importance of robust case management, of which judicial continuity is a key component. Therefore to assess how the PLO was being effectively implemented it was important to gather evidence on how judicial continuity was practised in local areas.

46.  Nearly all responses noted that judicial continuity was both desirable and to be maintained, wherever possible, in all tiers of court. However this support for judicial continuity was subject to a number of qualifications. For ease of analysis responses have been categorised into three broad groups.

47.  As can be seen, the majority or respondents expressed the view that "generally speaking" case managers were allocated to cases and that judicial continuity was maintained. This was often characterised as being within the limits of what was possible. Listed below is a selection of the barriers identified by respondents to achieving continuity:

  • "The biggest challenge to achieving continuity is accommodating judicial sitting requirements across civil, criminal and family work, which often takes place across several court locations."
  • "The operation of a legal adviser rota system was problematic to achieving continuity in the FPC."
  • "A lack of family recorders, who could be utilised to free up case managers to hear care cases they are responsible for."
  • "Not fully utilising the District Bench to manage cases through to conclusion."

48. There was also a number of success cited in overcoming those barriers:

  • "Because final hearings are not listed until the 1RH, this means continuity is easier to achieve as judges' diaries are not booked months in advance."
  • "Although it is not always possible to achieve continuity of legal adviser in each case, the practice of extensive recording on court orders does make it easier should another team member have to pick up a case."
  • "The listing officer now comes to court at the end of each CMC or IRH so that dates are fixed before the case management judge in the presence of all the parties."

49.  The interrelationship between delay and judicial continuity was noted by several respondents and the importance of close liaison between case managers and the listing office to ensure that cases were not delayed because of judicial or legal adviser availability was stressed.


50.  Responses to the survey, supported by statistical evidence from Cafcass, suggest that much progress has been made over the past 12 months in meeting the stated aims of the Agreement. As the Agreement was not operational until October 2010, clearly this progress was begun under the President's interim guidance and therefore the success of the Agreement has to be viewed as an incremental one, showing a long term trend of gradual improvement, building on the achievements already made by the interim guidance.

51.  The anecdotal evidence, suggests a broad consensus that the Agreement and the previous interim guidance, have brought about improvements in the provision of children's guardian, in line with the timelines set down in the PLO and despite continued high levels of care applications. It suggests that agencies are working together to ensure all cases have the benefit of timely advice from Cafcass.

52.  This view is supported by statistical evidence which indicates that during 2010, significant progress was made in reducing the number of cases where no Cafcass officer was allocated to a case. The number of cases has been reduced from 6.1% at the end of Dec 2009 to just 0.3% at the end of Dec 2010. Where cases have been allocated, a greater proportion are being allocated on a substantive basis, rather than as duty advisers (96.3% of cases were substantively allocated at end of 2010 compared to 88% at the end of 2009) and finally a greater proportion of substantive allocations are taking place in a more timely way (Dec 2010—91% of substantive allocations by CMC).

53.  Taken as a whole, this represents persuasive evidence that local arrangements put in place as a result of the President's interim guidance and the Agreement have been a significant factor in reducing allocation backlogs and minimising the use of duty advisers. This is a considerable achievement when viewed in the context of the continued high level of demand for Cafcass services seen throughout 2010.

54.  When considering the impact on inter-agency working it was noteworthy that survey responses, particularly those from DFJs, positively record the increased co-operation and understanding that had developed between Cafcass management and the judiciary as a result of the Agreement. These working relationships were being maintained via continuing review of the arrangements between the DFJ and their respective Head of Service in Cafcass. The use of email and telephone to deal with specific issues pending regular meetings was cited as being the most satisfactory arrangement.

55.  Where difficulties in providing substantive appointments still existed, there seemed to be a general understanding of the need to work proportionately on some cases, in times of high demand. Some areas had a clear timeline as to when they would be able to phase out interim arrangements and agencies were working toward this. In areas where progress was slower initiatives like "early intervention teams" were helping.

56.  The survey responses to the questions relating to the PLO and judicial continuity seem to indicate a general feeling that the causes of delay in care proceedings can inhibit the ability to operate it effectively. Most often cited was the prevalence of difficulties in obtaining expert evidence in a timely fashion. Perhaps unsurprisingly an increasing concern is the volume of cases currently being dealt with by the courts and the effect this is having on resources to deal with family work.

57.  This policy assessment concludes that when viewing the evidence as a whole the Agreement, has built on the progress made by the interim guidance. It has been successful in achieving its aims, which is demonstrably clear from the statistical evidence, supported by concurring opinion from frontline practitioners collected through an online survey,

58.  It is clear that local areas have used the Agreement as a mandate to formulate sustainable agreements, which have resulted in significant improvements in guardian provision. However with the continued high levels of s31 applications being forecast to be submitted to the family courts, with the consequent continuation of high demand for Cafcass services, there is strong evidence that the successful working practices adopted by local areas to manage current workloads should be maintained.


59.  The National Performance Partnership (NPP), with senior representatives from MoJ, DfE, the judiciary and Cafcass considered and endorsed this policy assessment when they met on 6th April 2011.

60.  This assessment will be supplemented with a short update paper in June 2011, with the latest performance figures from Cafcass and HMCS and a brief analysis of any significant change in the current position. This will inform discussions between Ministers and the President of the Family Division on the need for any future local arrangements, upon expiration of the current agreement on 30th September 2011.

National Performance Partnership

March 2011

104   The President's interim guidance for England, 30 July 2009 (extended on 1 April 2010)

105   Cafcass count "per care application". An application may pertain to multiple children.

106   Total care and supervision applications outstanding in all family courts (counted by child).
Source: HMCS Performance database 9 March 2011 (excludes data for HMCS Wales). 

107   Two separate performance improvement groups exist in London and Kent. The one response received from the DFJ in each of these areas was considered to cover both LPIG areas, therefore statistical data in relation to the survey relate to 34 responses. Back

108   Some anecdotal evidence was received from DFJs in Wales, through the online survey. These have been excluded from this paper and have been forwarded to the Welsh Assembly Government for consideration. Back

109   See Care profiling study, University of Bristol, Masson et al 2008 Back

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Prepared 14 July 2011