Select Committee on Draft Children (Contact) and Adoption Bill First Report

CHAPTER 8: Resources

The family courts and CAFCASS

150.  The proposals within Part 1 of the draft Bill are part of a wider reform of the family justice system for private law cases. The partial Regulatory Impact Assessment (RIA) published alongside the initial Green Paper claimed that the proposals would be resource neutral overall, and this assertion was repeated in the RIA published with the draft Bill:

"The proposals here are aimed at improving the effectiveness and thus the efficiency of dealing with conflicted contact cases. Costs of the new disposals will be met from reduced expenditure on the repeated contact cases that would otherwise take place."[125]

151.  Central to this assertion is the assumption that the proposals in the Green Paper will lead to earlier intervention and so reduce the overall caseload. A reduction of anything up to 60 per cent is expected to produce savings of between £5.1 million and £76.8 million per year.[126] Several of our witnesses have questioned this assumption.

152.  The University of East Anglia research team argued that "it is difficult to envisage that the measures announced in the Green Paper will lead to a substantial reduction in court applications",[127] while Professor Judith Masson and Dr Cathy Humphreys of the University of Warwick told us that "there is currently no basis to suggest that changing the law in the way proposed in the draft bill will lead to the substantial reduction in cases suggested in [the draft Bill Explanatory Notes] para 58".[128]

153.  District Judge Michael Walker suggested that the proposals might even lead to an increase in caseload:

"We do not know whether, if we have got greater powers of enforcement, it may mean that at large people may behave more reasonably and cases do not come to court. On the other hand, it may well be that a lot more cases will come. One thing I am aware of is that one third of fathers cease all contact within the first two years of separation. There is a whole variety of reasons why that happens, but I think a good number are because they experience difficulties with contact and they just give up. If they see that the courts have got greater powers and are going to be more minded to make sure that contact does occur where we believe it should occur, then they may come back into the system that they at the moment have opted out of, so numbers may go up."[129]

154.  Such an outcome does not appear to have been considered by the Government, with the low-end £5.1 million saving estimate being based on a worst-case scenario of no decrease in caseload.

155.  We recommend that the Government reconsider their assertion that the package of proposals contained in the Green Paper will lead to a reduction in caseload. The resource implications of an increase in caseload should be calculated and presented in the final RIA.

156.  The resource-neutral assertion is also based on an assumption that no additional resources would be required for CAFCASS or the Court Service. Anthony Douglas of CAFCASS explained to the Committee that, in relation to drafting new guidance, collecting parental contributions and monitoring the new regime, the costs would not be excessive:

"I do not want to downplay those but I think the drafting of guidance is within routine management costs… Yes, there are always costs associated with new work but I believe that this Bill is mostly about giving judges and giving ourselves slightly greater power to bring intractable cases to a proper conclusion."[130]

157.  This assumption too has been questioned. The Bar Council argued that:

"The provisions potentially place a very considerable burden on [CAFCASS], both in terms of providing information and monitoring compliance. This service is already so overstretched that, even in urgent public law cases, there is often many weeks delay before an officer is appointed… It is noted that there is no intention to invest further resources into Cafcass. If the provisions are to be workable and effective, orders need to be implemented without delay and any breach quickly referred back to court. It is difficult to see that this will be achievable."[131]

158.  Lord Justice Wall submitted:

"I was very concerned to read in paragraph 39 of the Regulatory Impact Assessment that 'it is anticipated that no additional resources would be needed'… The Government perhaps needs to be reminded that its assertion that the creation of CAFCASS would be 'resource neutral' was not only seriously wrong, but a significant factor in the substantial difficulties which CAFCASS encountered in its early stages, and from which it is, to a substantial extent still suffering."[132]

159.  To ensure that the point is clear: the draft Bill imposes a wide range of new duties on CAFCASS officers. These include advising courts on the suitability and availability of contact activities (new section 11C); monitoring participation in these activities (new section 11D); facilitating and monitoring compliance with a contact order (new section 11F); advising courts on possible enforcement orders; and monitoring compliance with them (both new section 11H). This may be counterbalanced, to some extent, by a reduction in the scope and number of reports that CAFCASS officers are required to make to the courts.

160.  When questioned on this point, the Minister told us that CAFCASS had assured her that the change of direction away from detailed report-writing, and earlier intervention work meaning fewer cases ending up in court, would release the resources needed for the new duties proposed under the draft Bill. She concluded:

"we will only bring this legislation in when we are clear that the resources are available and that requires both the judiciary and CAFCASS to stop doing some of the things they are currently doing."[133]

161.  We appreciate the additional resources put into CAFCASS in recent years and commend the Government's statement that it will ensure that resources are available before the legislation is brought into force. We recommend, however, that the full RIA should include a detailed explanation of how both CAFCASS and the Court Service can expect to meet their increased remits within existing costs.

162.  We also recommend that the Government make clear what action it would take if extra resources were requested by CAFCASS or the Court Service following implementation of the legislation.

Contact activities

163.  It is clear that the success of the Bill's proposals rests on the availability of a range of contact activities at a local level. The Association of District Judges highlighted this point:

"The proposals will only work if they are properly resourced. Before a contact activity direction can be made the necessary information meetings, classes, programmes, counselling or guidance sessions must be available and capable of being accessed quickly and cheaply."[134]

164.  It is not clear to the Committee how complete the provision of services is nationwide. If there are gaps these will need addressing with appropriate resourcing before the Bill's reforms are implemented. If the Government does not close the gaps in parts of the country where there is not a full range of activity options available to judges then these reforms may be subject to localised failure. The Government must therefore recognise that it may be necessary to provide additional up-front investment in the short term in order to realise more fully the significant potential costs savings later down the line.

165.  As noted in paragraph 49 above, we recommend that the Government carry out a review of the local service provision of contact activities. Ready access to these services is essential to the successful implementation of the Bill. Where gaps are found, the Government should be prepared to invest additional money to improve service provision and thereby, it is hoped, secure the anticipated future savings.

Regulatory Impact Assessment

166.  A Regulatory Impact Assessment (RIA) is an analysis of the costs, benefits and risks associated with a range of policy options. In August 1998 the Prime Minister announced that no policy proposal which has an impact on business, charities or voluntary bodies should be considered without an RIA being carried out.

167.  Compared to many other RIAs, the assessment published in support of the draft Bill is thorough. Costs and savings associated with implementing the Green Paper proposals are compared with the option of doing nothing and, in accordance with Government guidance, estimates are presented as ranges, with some indication of the impact of changes in assumed input values.[135]

168.  While we do wish to record our appreciation of the Department's work on this assessment, there are some shortcomings. The presentation of the RIA is somewhat confused, with the connection between assumptions and estimates not always made explicit and the choice of values sometimes appearing arbitrary.

169.  For example, on enforcement orders, costs at the low-end of the estimate range are based in part on assumptions that the Green Paper proposals will lead to an 80 per cent reduction in enforcement cases each year and that just 1 per cent of these applications will result in an enforcement order, while high-end costs assume that there will be no reduction in the number of enforcement cases per year and that 3 per cent of these applications will result in an enforcement order.[136] The RIA fails to provide the reasoning behind the selection of these input values, however, nor does it provide any indication of how likely such outcomes are expected to be in reality.

170.  The presentation is further confused by the listing in the RIA of costs for supporting advice and help agencies which appear to have already been committed and will therefore exist even in the absence of the Bill. This makes it harder to establish the additional costs solely related to the proposals in the Bill.

171.  We recommend that, in presenting the final RIA, the Government makes clear the basis of its assumed input values, makes explicit the connection between assumptions and associated estimates, and indicates the probability of costs and savings leaning towards the low- or high-end of the estimates. We also recommend that a summary of the estimated costs and savings associated with the two options is presented, so as to allow comparison of the relative merits of each proposal.

172.  More fundamentally, the RIA suffers from a lack of empirical data in relation to child contact activity in the courts. As such, several of the assumed input values which underpin the various low- and high-end estimates are based on sample data from just one piece of research.

173.  For example, the RIA is consistent in its assumptions that there are currently some 7,000 enforcement cases annually and that approximately 60 per cent of parties in contact cases are legally aided. These figures are derived from an analysis of 300 cases,[137] but a recent study by the University of East Anglia into 59 cases in Essex has produced quite different results.[138] Despite the uncertainty, the RIA does not present a systematic analysis of the sensitivity of the various costs and savings estimates to alterations in these inputs.

174.  In response to questioning, the Department has told us that its estimates are designed to be "illustrative" only.[139] While we acknowledge that the Department has allowed for the uncertainty of many of the data inputs by presenting its estimates as ranges, we are surprised that it has not sought to achieve greater certainty by entering into further research into the current level of child contact activity in the courts. Moreover, we are disappointed to hear that the Government has no plans to introduce more systematic collection of those statistics currently only estimated from samples.[140]

175.  We recommend that, prior to the introduction of the full Bill, the Government improve their knowledge of current child contact activity in the courts, either through direct collection of statistics or through further sampling. Doing so will allow the Government to either rely less on assumed inputs or improve its confidence in its assumptions, and so narrow its costs and savings estimate ranges.

125   RIA, para 7 Back

126   RIA, para 24 Back

127   Ev 142, section 7 Back

128   Ev 144, section 6. See also Ev 168, para 23. Back

129   Q 284 [District Judge Walker] Back

130   Q 126 [Mr Douglas] Back

131   Ev 177, section 2. See also Ev 1, point 4. Back

132   v 10 Back

133   Q 350 [Margaret Hodge MP] Back

134   Ev 86, summary page 1, para 4. See also, for example, Ev 177, 2.1; Ev 1, point 1 Back

135   Better policy making: A guide to regulatory impact assessment, Cabinet Office, para A4.14-A4.22 Back

136   RIA, paras 22-35 Back

137   RIA, paras 22 & 43-45 Back

138   A profile of Applications and Respondents in Contact Cases in Essex, Liz Trinder et al, DCA Research Series 1/05, January 2005 Back

139   Ev 120, para 8 Back

140   Ev 120, para 9 Back

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