Supplementary evidence from Cafcass (FC
75)
REVIEW OF LOCAL ARRANGEMENTS BETWEEN CAFCASS
AND DESIGNATED FAMILY JUDGES
MARCH 2010
INTRODUCTION
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.
BACKGROUND
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.
METHODOLOGY
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]
RESULTS
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-09 | Jan- 10
| Feb-10 | Mar-10
| Apr-10 | May-10
| Jun-10 | Jul-10
| Aug-10 | Sep-10
| Oct-10 | Nov-10
| Dec-10 |
| Substantive | 9,981 | 10,090
| 10,383 | 10,518 | 10,760
| 10,974 | 11,243 | 11,493
| 11,609 | 11,986 | 12,256
| 12,366 | 12,406 |
| Duty | 676 | 716
| 850 | 991 | 1061
| 1121 | 1049 | 1049
| 1017 | 727 | 568
| 435 | 431 |
| Unallocated | 689 | 549
| 430 | 474 | 551
| 422 | 210 | 143
| 159 | 130 | 45
| 18 | 39 |
| Total workload | 11,346 |
11,355 | 11,663 | 11,983
| 12,372 | 12,517 | 12,502
| 12,685 | 12,785 | 12,843
| 12,869 | 12,819 | 12,876
|
| Dec-09 | Jan- 10
| Feb-10 | Mar-10
| Apr-10 | May-10
| Jun-10 | Jul-10
| Aug-10 | Sep-10
| Oct-10 | Nov-10
| Dec-10 |
| Substantive | 88.0% | 88.9%
| 89.0% | 87.8% | 87.0%
| 87.7% | 89.9% | 90.6%
| 90.8% | 93.3% | 95.2%
| 96.5% | 96.3% |
| Duty | 6.0% | 6.3%
| 7.3% | 8.3% | 8.6%
| 9.0% | 8.4% | 8.3%
| 8.0% | 5.7% | 4.4%
| 3.4% | 3.3% |
| Unallocated | 6.1% | 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.
PUBLIC
LAW
OUTLINE
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.
CONCLUSION
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.
NEXT
STEPS
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)
http://www.cafcass.gov.uk/pdf/Presidents_Interim_Guidance_30_July_09[4].pdf Back
105
Cafcass count "per care application". An application
may pertain to multiple children.
www.cafcass.gov.uk/news/2011/january_care_stats.aspx Back
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). Back
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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