On another note, a proposal to scrap CAFCASS and to reallocate it’s responsibilities to local authorities. Clearly something pretty radical needs to be done, but I’m no fan of that as a solution – whatever arrangements are made it is crucial that arrangements for the provision of Guardians, and to a lesser extent for reporting in children matters to be independent of local authorities.

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This sort of bust up has been a long time coming. However, am presently too distracted with post-wisdom-tooth-extraction wooziness to comment meaningfully….today you must read for yourselves.

POSTSCRIPT: CAFCASS CEO Anthony Douglas’ response to the letters and position statement.

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Even Forrest Gump knows that s7 reports are like a box of chocolates (you never know whatchu gonna git – are you going to get the truffle, or the orange creme nobody wants? Apologies for the naff analogy but it’s nearly time to knock off for the hols and a big tin of Christmas chocs is beckoning…) As for s7 reports, I’ve had a few orange cremes lately, and whilst I am the kind of social outcast who is happy to scoff all the orange cremes at the bottom of the tin (I love ‘em), when it comes to duff s7 reports there is an important point of policy beneath that sparkly foil wrapping (Okay, enough of the analogy it’s making my teeth hurt).

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Occasionally a Judge will decide that a s7 report is flawed or that there is some other good reason to depart from a recommendation contained in it. Usually they do so politely and without hurting anybody’s feelings. Very occasionally a Judge will decide that a s7 report is so badly flawed that it warrants being spelt out in the judgment in terms which are quite strongly critical of the report writer. I have dealt with perhaps 3 or 4 of these in the last couple of years. Very very occasionally the Judge will be so unhappy with the quality of the s7 report that they will order a copy of the judgment be sent to social services to ensure that they are aware of the court’s concern (this can only happen with the court’s permission – parties cannot disclose the judgment themselves without permission). Incidentally, I’ve yet to deal with one of these cases where the media has been present, but I suppose it is only a matter of time before a similar case is identified by the media and permission given for it to be reported.

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In most of the cases that I have dealt with where a judgment has been highly critical of an unsatisfactory s7 report that report has been prepared by social services: by a social worker who may or may not be experienced but who has very little experience of private law work or of s7 reports (in one case a CAFCASS report was prepared by a sandwich year social work undergraduate on a work placement at CAFCASS). Clearly this is nothing like a statistically valid sample, but my sense is that (for better or for worse) the organisational quality checks on reports may tend to be more rigorous within CAFCASS than elsewhere. Big generalisation, but that’s my sense. In some respects this should come as no surprise since it used to be the expectation (not so any more since CAFCASS has ground to a halt) that most s7 reports were produced by CAFCASS as a matter of course – its what CAFCASS DO, and its more of a sideline for social services. In recent times of course the courts have been forced to fall back on social services to prepare s7 reports where CAFCASS cannot, and no doubt this is an additional pressure on often reluctant Local Authorities who would frankly rather be focussing their resources on child protection and on actual or potential care cases.

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If my experience is representative a s7 report from social services will typically be comparatively cursory. Sometimes it will be a slender report that has an air of ’Yep, current situation looks fine, now can I go back to my child protection caseload?’ to it. Concerning features I have noted from time to time are reports which

• substitute inappropriate criteria for the welfare checklist (safeguarding as buzzword, Every Child Matters Five Outcomes as glib justification for decision) and / or fail to properly utilise the welfare checklist as a tool for informing the s7 assessment and cross checking of recommendations, in particular a report which fails properly to take into account the significance of change (I think this is probably a by-product of a child protection mindset where the starting point in care planning is often of an already displaced child rather than a status quo with one parent?),

or are prepared by a reporter who

• takes a minimalist approach to the scope of assessment or the breadth of the question posed (least possible work to achieve compliance with direction), or who
• produces an oversimplistic rendering of the issues in the case, a flattening out of the subtleties (because if its not ‘care’ its not complex).

Again, I generalise. Again, I stress: this is not the norm, it is the extreme end of the spectrum. But I have seen it more than once. And it does worry me.

The reality is this. A publicly funded party will often have funding withdrawn on the filing of a negative report. That’s ok if the report is of good quality. If a report is solid then in the vast majority of cases sensible advice will be given to both parties, the matter will be compromised in line with the recommendations, and the parties and children can move on with their lives without waiting for a hearing date and without the stress of proceedings hanging over them. However if counsel advises the report is flawed and there is scope for it to be challenged at final hearing funding may still continue. Almost certainly in these circumstances neither party can be advised to settle – the outcome is still uncertain. One party has the benefit of a recommendation in their favour, the other of some arguments about a flawed report. A contest is inevitable. The matter will have to be listed.

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I hold the view that where a Judge has been strongly critical of the quality of a report (whether CAFCASS or Social Services) the interests of justice require that Judgment to be disclosed back to the Local Authority (or CAFCASS). It is essential that reports are of a consistently good quality and Local Authorities, CAFCASS and indeed individual report writers cannot be expected to improve quality if they are not told where they are going wrong. It may be unpalatable to potentially get a well meaning and hard working social worker into hot water with her manager (Although in practice the report has probably been seen and approved by a team manager and someone in legal before ever being filed), but consider these important reasons why judicial remarks about poor quality reports should be disclosed to the organisation responsible for it:

• to ensure the court and the parties can be reasonably confident that the right outcome will be reached for their child and that the court will be put in a position of having a reliable basis upon which to reach a conclusion
• to ensure that public funds are not wasted on unnecessary contested hearings (say, at least 1 day court / judicial time, solicitors and barristers costs etc)
• to ensure that parents are not given false hope of an outcome in their favour or conversely are not unecessarily forced to endure the wait for a contested hearing that could have been avoided, with all the stress that goes with that
• to ensure that delay is not caused for the child, either by increasing the need for contested hearings or by resulting in the need for addendum reports or even reports from alternative agencies to make up in the deficit in information in the first report
• to ensure that the overstretched resources available are not further overstretched by taking up court time / prolonging cases
• to ensure that where cases have with hindsight gone wrong parents can be satisfied that steps have been taken to ensure that such failings will be learnt from and will not be repeated

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At the end of the day, it feels good to have successfully undermined a flawed report through cross examination and to have achieved the outcome your client sought in the face of a negative recommendation. But the significance of these experiences goes beyond that child and that case – will the flaws be present in the next report prepared by that social worker? And what happens to parents who are not represented? It is a tough job to unseat a s7 recommendation and a judge has to be given sufficient basis upon which to properly do this, or risk appeal. I don’t think this is something most litigants in person would be able to do.

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So what happens if the quality of s7 reports declines as a result of an overstretched or failing system, and if simulataneously the availability of public funding or of counsel to take on such cases reduces as a result of public funding cuts? The wrong outcome for children, injustice for parents and families. So whilst it’s no panacea to send a critical judgment to social services or CAFCASS by way of feedback, I think it’s the least that can be done.

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The stark reality given the current state of CAFCASS is that Social Services are likely to be the primary providers of s7 reports for the forseeable future and it needs to be something that their social workers are trained and competent in, not just a sideline.

Firstly, the Bar Standards Board has approved barristers forming LDPs. Big changes ahead I think. Thanks to the LAG blog for this.

Secondly, PM on Radio 4 briefly covered the CAFCASS Crisis today – tomorrow they will run another slot with comment from Guardians. On Radio 4 tomorrow (Weds) between 5 and 6pm.

Postscript:

I have to post a link to this story reported today in The Times about the LSC refusing to fund new cases being taken on by solicitors. Yet another bit falls off the wagon. The whole system is falling to pieces.

But now a firm of solicitors acting for a child involved in proceedings have secured public funding to launch a Judicial Review of CAFCASS and the Department for Children Schools & Families which funds it. The Official Solicitor will be taking responsibility for the case, which is now in preparation. As part of that preparation solicitors in the case are gathering evidence from professionals up and down the country in respect of CAFCASS delays and the impact upon children caught up in proceedings.

The solicitors handling this case are at pains to stress that such a challenge is not one aimed at running down the hard working CAFCASS Officers who are overwhelmed by impossible caseloads, but at the funding and management of the organisation as a whole which has led to the wholescale collapse of service provision for children within timescales appropriate to them.

No doubt a JR will be difficult to pull off, but let us hope that it is sufficiently embarrassing to produce an injection of funding and a rethink on the part of those who manage the purse strings and the organisation.

Watch this space…

UPDATE Evening of Mon 16 Nov: I have had a number of enquiries today about the source of this information. It has come from the solicitors firm involved, who have confirmed they are happy for this basic information to be published. As I understand it this application is at a pre-issue stage and the solicitors are seeking factual information from legal professionals only - I would guess primarily in respect of care cases (or other cases involving a child’s guardian) rather than any case involving CAFCASS. Many of you share your opinions about CAFCASS on this blog, but I believe the exercise at present is one of gathering specific and measurable data rather than opinion or narrative.

As and when more information becomes available I will post it, but for the meantime I’m going to let the solicitors involved get on with their preparation.

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It’s concerning in the first instance that the drafts should have been apparently subject to criticism from respected academics, although it’s unclear from the article what the detail of those concerns were. It appears from the article that the academics were not consulted prior to publication, although this is not entirely clear. We are told however that the issues raised are now being addressed with the document being redrafted in a form more closely underpinned by a research base. That seems sensible, but it does leave one a little anxious as to the quality of the work being undertaken on behalf of CAFCASS if, as appears to be the case, research was not properly understood and incorporated from the start. FNF appear to have thought that this material was of sufficiently high quality to warrant publication, and CAFCASS either tacitly agreed or failed to keep an eye on what FNF were doing on their behalf. 

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It is concerning when a statutory body with one particular set of aims and objectives appears to be allowing a campaigning organisation with a very particular agenda to draft its own practice documents. I find that odd. It is no criticism of FNF, but I’m just not sure that a campaigning body should be tasked with responsibility for work of this kind. FNF along with other organisations, experts and stakeholders could legitimately have an input into these documents, perhaps by way of a working group or committee, but that is quite different from one organisation being able to drive the content of the material that CAFCASS bases its practice upon.

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The guidance is still posted on the FNF website here (no reference to it on the CAFCASS website at all). It reads very much to me as a document designed to persuade CAFCASS Officers who (the authors appear to assume) is likely to be predisposed not to take fathers seriously, as to the benefits of shared parenting and shared residence. It reads more as a campaigning tool than an impartial guidance document and talks throughout very specifically about Fathers being involved in shared care as if the intended reader (the CAFCASS Officer) will start from the proposition that a Mother will always be involved in day to day care in any event. It says more about the mindset and policy of FNF than it does about the mindset and policy of CAFCASS.

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Bizarrely, the document wholly fails to set out the statute and case law pertaining in this jurisdiction (which is increasingly pro-shared care / shared residence) but does annexe statute relating to Australia, which is an interesting distraction. Again, I can only guess that this is because it is felt by the authors that the English law is unhelpful to the argument for shared care (which is not so) and that CAFCASS officers might perhaps be usefully enlisted to persuade the (apparently) reluctant English & Welsh judiciary of the error of their ways. In my experience Judges are often far more well disposed to shared residence orders than some CAFCASS officers, and are certainly (in the most part) up to speed with the law in this area. 

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I do think that guidance for CAFCASS officers is needed: knowledge of the current best practice and higher court authority on shared care is very patchy. CAFCASS officers too often rule out or fail to consider shared care on the basis that the parents don’t get on very well, which is plainly outdated and contrary to authority. Not all Officers labour under such outdated knowledge, but it does happen too often. Clearly CAFCASS officers are busy and anything that helps them keep their knowledge of current guidance up to date is to be welcomed, but it must be a balanced and sound overview: what I’ve seen so far is neither.

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I don’t know if my concerns match with those raised by Joan Hunt and Liz Trinder, but I would like to think that a project funded by the EHRC would be of a higher standard prior to publication, even in so called ‘draft’ form (EHRC website says that FNF have been awarded c£34k to ‘bring awareness and find solutions of how gender discrimination and / or a breach of human rights creates barriers to shared parenting’). Whilst the funding of FNF to undertake work for the EHRC is to be commended, I’m afraid that at the moment this specific document reflects both poorly on CAFCASS’ control of it’s own policy, and upon the professionalism of FNF. FNF are an organisation with a legitimate interest in this area, and a legitimate desire to have real input in documents of this type, but CAFCASS need to take responsibility for their own policy and for the professional development of their officers.

But what I want to know having read this article is - what portion of the 739 applications issued in March 09 (79% up on the same month in 2008) have a Guardian appointed? And in how many of those cases issued in March have the children been removed without a Guardian being appointed or at court? The new duty CAFCASS Officer system doesn’t do justice to the seriousness of urgent removals and I have done at least one ICO hearing where the application was for removal where there was no duty Guardian at court, and another where the duty Guardian had not read any of the papers.

On one level 7% unallocated doesn’t sound too bad, but I would hazard a guess that of new applications the proportion is much much higher, and of the 6090 total cases the majority of ’old’ cases have a Guardian. Crucial – and sometimes irreversible – decisions are made at early hearings in care cases and it is vital that the children’s needs are properly protected. And of course the 7% figure does not include Guardian appointments in private law cases under r9.5 FPR 1991, or the dire situation with respect to s7 reports.

Whilst it is right to prioritise cases in circumstances where CAFCASS are simply unable to meet demand, this really does an injustice for the families which fall in the ‘serious but not that urgent’ category, particularly in private law cases where what might previously have been a short interruption in contact remedied by a swift and robust s7 report can turn into a protracted interruption in the parent-child relationship, which is a massive disadvantage to the parent seeking a contact order, and of course a failure for the children involved. 

I wonder when CAFCASS leadership will stop telling us all ‘we can manage’ and admit that the system is in crisis and needs an urgent increase in its staffing levels? I don’t know what Anthony Douglass means by suggesting CAFCASS is providing a ‘proportionate’ children’s guardian service: either a child needs a Guardian or they don’t and when they do CAFCASS are ordered to appoint one – there is not then a discretion on CAFCASS as to whether or not to comply. As a matter of public policy a child is deemed ALWAYS to need a Guardian in care cases, as set out in the Public Law Outline. Under the PLO CAFCASS are ordered by the court, to appoint a Guardian before the first hearing in every care case. There is a good reason why a Guardian is required to be active before first hearing – a hasty removal in those feverish early days can have a ripple effect that can affect the direction and outcome of a case and can have a long lasting effect on a child’s life.

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I was particularly struck by the list of how long it is taking to complete reports. I knew there was a particular problem in our region but this is shocking:

Bristol 26-34 weeks

Basingstoke 15 weeks

Southampton 16 weeks

Aldershot 17 weeks

Bournemouth 17 weeks or more

Gloucester 20 weeks and no date now given in many cases

Portsmouth up to 22 weeks

Trowbridge 34 to 40 weeks

Earlier this week I had to explain to a client why he would have to wait until late September at the earliest for a report and that in all probability he would have to wait significantly longer as CAFCASS were likely to write requesting an extension at the last minute. In the meantime he has NO CONTACT with his son. He simply did not understand how this could be. I have also dealt with emergency protection orders, interim care orders where there is no Guardian and none expected for 6 weeks. Decisions are being made about the removal of children from their families without their interests being separately represented. Solicitors for the children do their best, but they are legal experts not experts in children per se.

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So yes this is an unusual step for a District Judge to take (I have seen head honchos summonsed and grilled by judges before but never after an invitation to the media to watch the spectacle). And although it is not telling those of us who work in the system anything new, it IS right that systemic failures that are having such a fundamental impact on families and children should be brought to wider public attention somehow. Without this kind of judicial proactivity this issue would have been highly unlikely to have been aired.