26 September 2011

Dear  …………………,

I have long had my doubts as to whether Cafcass as an organisation is fit for purpose.  I have been critical of the honesty and integrity of the management of the service, things that continue to concern me.  I have to agree with the many individuals and organisations who have concluded that the problems of Cafcass are so manifold and entrenched   that any satisfactory solution requires a complete transformation.

This has, inevitably created tensions in my employment, particularly as Cafcass has become increasingly prescriptive in the way in which it requires its advisors to work.  The emergence and consolidation within Cafcass of a ‘compliance culture where meeting performance management demands becomes the dominant focus rather than meeting the needs of children and their families’ (Munro Review of Child Protection: Final Report: HMSO May 2011) is something that I, and many of my colleagues have found to be deeply troubling.

I have therefore, reluctantly, come to the conclusion that it is not possible for me, as a Cafcass employee, properly to represent the interests  of children nor to report independently, honestly and helpfully to the court in a way that is consistent with my statutory duties and my professional conscience.  Fulfilling the statutory duties  of a family court reporter requires a degree of professional autonomy which Cafcass employees are, in practice, effectively denied by the compliance culture and its various managerial buttresses.

I have  therefore resigned from Cafcass.  My last day of service was yesterday.

It is not possible for me personally to contact everyone with whom I have worked over many years but I would like to express my thanks to everyone within the Bristol and Avon Family Justice world for the generous advice, assistance and support I have received in all sorts of ways.  Please feel free to circulate this letter – and apologies to those I have not contacted directly.

Yours sincerely

Charles Place”

Background:

Charles Place was suspended from CAFCASS in 2009 and allegations of misconduct made against him in connection with his voicing of concerns about the operation of CAFCASS were not upheld by the General Social Care Council. In it’s decision notice the GSCC stated that Mr Place’s criticism of delay in CAFCASS reporting on a private forum was “legitimate” and that “the facts supported the stance taken by [Mr Place] that CAFCASS had put a dishonest spin on the scale of the problems it faced.” The decision notice can be found here.

Anthony Douglas, CEO CAFCASS

I contacted Charles Place as a courtesy to ask if he minded the above letter being posted on Pink Tape. In his reply Mr Place raises a number of other points which, if an accurate reflection of how CAFCASS is operating, are very concerning. I have thought about whether or not it would be appropriate to include those supplemental comments in this blog post, but it seems to me that the questions raised are serious ones, and which are of public interest. I have however left out parts of the correspondence which might identify any individual, or which concern the detail of Mr Place’s working relationship with specific colleagues.

I do not know whether the information below is entirely accurate – others may respond and tell me that Mr Place is wrong – but I do know that much of what he says is entirely consistent with my own observations and what other CAFCASS officers have told me openly or in confidence. I am however merely an outsider to the organisation, albeit that I have regular and frequent contact with it’s representatives, and struggle daily to match needs of individual families with the a la carte menu of defined and restricted services that is a feature of post-Interim-Guidance CAFCASS.

In fairness to CAFCASS, they have of late received more positive inspection reports than in previous years (one example is here), which is an indication that they are doing something right. It is also fair to point out that CAFCASS, like other areas of the family justice system, continue to operate under increasing demand (see here: August care stats at record levels).

Charles Place’s comments:

Eileen Munro

What was  really bugging me in May – in the context of many  other jobsworth type bureaucratic requirements if you know what I mean, was that because I had omitted to refer in some of my sched 2  letters to ‘issues of diversity’  - even though i had no reason to believe that there were issues of this kind that were relevant to the application (and I accept, of course that sometimes such issues are very relevant) – my professional competence was being called into question and i was told to redraft letters that seemed to me – for what they were worth – perfectly adequate.  It seemed to impossible to have any sort of discussion or argument about this – or other aspects of the sched 2 policy without it becoming a disciplinary matter.

Mr Place draws my attention to the evidence of CAFCASS Chief Exec Anthony Douglas at the Parliamentary Public Accounts and Justice Committees, and the case of A County Council v K & Ors (By the Child’s Guardian Ht) [2011] EWHC 1672 (Fam) (04 July 2011) (brief blog post here), which for him are evidence that problems persist. The Munro report is also quoted, and that can be found here.

I would welcome comment or response from CAFCASS.

Please keep any comments respectful and confined to the organisational issues not attacks on individuals.

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It was a shocking story, perhaps more so for those who do not work in the system and have not been caught up in it in respect of their own families. On another level, for care practitioners like myself it was however in many respects unremarkable – although the case broke new ground in respect of issues concerning publication of judgments and the identity of experts the care proceedings themselves raised familiar issues and followed a well worn path. What was unusual in terms of the care proceedings was the total failure of the Local Authority to make out threshold.

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There were several predictable references to the secrecy of the system, though the system was not so secret as to prevent the programme from being made. The fact that permission had been given for the proceedings to be reported did not appear to attenuate the hyperbole about the cloak and dagger approach of the courts (In fairness though, the lengths to which the parties and the BBC had to go to get permission were not insignificant as can be seen from the number of citations which follow at the end of this post).

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In general I thought that the process was explained pretty well, and accurately. However I thought that towards the end it rather descended into a sort of tabloid style. I am thinking in particular of the naming and shaming of ‘the experts who got it wrong’, which rather undermined what had gone before and was frankly rather unfair to the Community Paediatrician whose referral triggered the child protection processes. It went as follows:

‘The experts who got it wrong:

Dr Carl Johnson the police expert whose evidence suggested a history of abuse (cue mugshot on wall of shame)

Dr David Vickers the community paediatrician who told police that without an explanation for Williams injuries the likely cause was that it was inflicted. The judge did not accept this argument. (cue mugshot on wall of shame)

Professor howard bird the rheumatologist who suggested hypermobility. The judge found that he had failed to be guided by a duty of professional detachment. (cue mugshot)’

What was not adequately teased out to my mind was the fact that the evidence of the community paediatrician who had made the initial referral was ‘rejected’ only after further expertise was drawn in for the purposes of the family court proceedings: i.e. the court process had served to vindicate the parents in a way that could not have taken place had no court process been commenced. It was a significant omission in my view not to make clear the distinction between professionals treating on the ground offering provisional opinions about the risk of NAI for the purposes of initiating child protection processes, and the considered opinion of experts instructed specifically for the purposes of conducting a rigourous after the fact analysis of the cause of injury on the basis of a vast amount of additional evidence and with the benefit of a great deal of hindsight. The insinuation from the programme was that the evidence of the community paediatrician involved prior to the commencement of proceedings was rejected as in some way substandard, or that he did not do his job properly, when it is not in fact at all clear that this was the case. The Radiologist was the subject of criticism and this was spelt out, and the listing of them together as ‘the experts who got it wrong’ tends to suggest the court was similarly critical of Dr Vickers.

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Unfortunately, although permission was granted to report it, the original judgment in the care proceedings does not appear to be reported although extracts from it appear in the subsequent judgments about publicity. It is not clear from that material what role the community paediatrician played in the care proceedings, but most likely he was a witness of fact if even called, who will have testified simply to the child’s presentation on the day. It is unlikely that he offered an opinion on causation to the court as he was not an independently instructed expert in the case, if indeed he gave evidence at all.  There is no suggestion in the material available that he was criticised by the Judge, even though her conclusion was that there was a non-accidental explanation for the injury. A child protection professional must approach possible NAI from the perspective of protecting a child whilst investigation and judicial processes are carried out: there is a necessarily cautious basis of operation based on risk. It is only subsequently that the judge enters the arena and she does not deal in terms of risk but in terms of fact.

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The fact that the court, taking into account all the evidence, concluded that findings could not be made and that NAI did not take place is not equivalent to suggesting that the individuals named were professionally substandard, wrong or incompetent. Had Dr Vickers not made a referral raising concerns about NAI he would have been in gross dereliction of duty and no doubt criticised for it. The parents in the programme acknowledged as much, clearly accepting that the child protection process had to be worked through, however awful. The programme fundamentally confused the identification of risk and triggering of child protection processes – which is a process designed to further investigate suspicions of harm rather than to conclude upon them – with the considered opinion of experts instructed to assist the court in reaching conclusions about what did or did not happen.

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Although in the event Munby LJ in did not grant anonymity to the treating clinicians, he did say this in his judgment ([2010] EWHC 538 (Fam)):

‘there is a significant and important wider public interest in protecting the anonymity of treating clinicians in child protection cases in order to promote the effective working of the child protection system; if treating clinicians are publicly ‘named and shamed’ and subjected to vilification for merely doing their jobs properly, there is a legitimate concern that they will become understandably reluctant to make child protection referrals and/or consciously or subconsciously require a higher standard of proof before doing so; or they may simply refuse to accept the personal risks of becoming involved in this area of work – consequences all of which would be profoundly against the public interest.’

This would seem to be a case in point.

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I was also  struck by the concluding remarks which I thought implied that in some way the campaign fought by these parents was responsible for some sea change in the approach of the courts, and indeed was instrumental in bringing about the Children Schools and Families Act 2010. Of course cases like these of perceived or real injustice and heartbreak are many, and it is the collective pressure applied by individual parents and campaign groups, as well as the advice of professionals from within the system that have brought about some change in this area and have made the question of transparent justice a matter of serious public debate. The Ward case is one example of the incremental shift in approach which has been gathering pace for some time.

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Jeremy Vine, during his brief slot topping and tailing of the report also suggested that the law had now been changed (as a result of the Children Schools and Families Act 2010) so that experts could now routinely be identified in the way that the experts in this case had been. He said:

‘And in the final week of the last Parliament, a bill was passed which rubber stamps the Ward ruling that paid expert witnesses can be identified.’

(Of course two of the three professionals the programme makers crowed about having obtained permission to identify did not fall into this category). This is not an accurate representation of the legal position, not least because the CSFA has yet to be brought into force. I think that viewers may well have understood from the programme was that they can name experts and tell the world what experts have said about their family and why they were wrong. In fact even when (if) the CSFA is implemented the press will be able to report only the name of the expert. The contents of any report will be classed as ‘sensitive’ and not publishable without permission, the background to its having been ordered is likely to be largely unprintable because it may identify the family and the parents themselves are not permitted to publish any information at all. Even if the press considered the bare bones of the story which are permitted to be published to be newsworthy they would only be able to publish information that they had gathered from attending the proceedings. There is of course facility under the new provision for specific application for permission to publish more, but this is already the case – and is the process used by the Wards and the BBC in order to make and air the programme.

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Far from the shift in the law that Panorama insinuated this case brought about, the situation remains and will remain in broad terms the same on this point (subject to any further statutory amendment). There is provision in the Act for relaxation of the reporting restrictions in future, but there is an 18 month moratorium from the date of implementation on that, and a slew of hoops that must be jumped prior to that being permissible under the act, including an independent review and public consultation.

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I thought it was a shame that a programme that quite carefully explained the court process and the reasons why child protection professionals had to take the action they did in a balanced way, was spoiled by basic legal inaccuracies and the temptation to find a way to engineer in a few punchy soundbites.

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The judgments in this case (excluding the original final care judgment) can be found here:

• British Broadcasting Corporation v CAFCASS Legal and others [2007] EWHC 616 (Fam).
• A v Ward [2010] EWHC 16 (Fam) [2010] 1 FLR 1497.
• Re Ward (A Child), Doctor A and Others v Ward and Another (No 2) [2010] EWHC 205 (Fam).
• In the Matter of William Ward [2010] EWHC 538 (Fam).

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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Wall of Brick’s excellent observations on Martin Narey of Barnardos (and ex Probation Service) recent expounding of views on the family courts. I agree with Brick, and I think it best if I let him express my views through the link to his blog post, otherwise I might vent my spleen inappropriately – there are so many people with so many views on how to fix the family courts – Barnardos, LSC, solicitors organisations, CAFCASS, children’s organisations and slightly informed journalists… Every time I have turned on the radio I have heard a different element of the system being blamed for the totality of the current or impending catastrophe. I’m glad that the crisis is reaching a wider audience but there is an awful lot of balone out there.

Barnardo’s press release is worth reading in full. The headlines sound sensible – why not aspire to a 30 week longstop, even if we all know it won’t happen? But then you read that Barnardos want to have a a tiered, fast track target of 12 weeks for children under 18 months. Don’t get me started on why that’s *not good* idea. Quite apart from the fact that I hadn’t even worked out which end of my baby was up by the time he was 12 weeks, its astonishing to hear the suggestion that we can deal with quite the most difficult and sensitive of cases in the shortest period of time. Maybe we should just brand parents ‘bad mother’ across their forehead when their first child is taken away so that we can fast track them through to adoption when they deliver their next child? You see what churlish mood I’m in? I’ll stop now before I say what I really think.

Also worth a read are Law Society Gazette’s interview with Carolyn Downs (interesting take), and Catherine Baksi’s summary of the same.

I’m off to do some work. And some deep breathing.

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Alas, this is not the beautifully crafted discussion piece I had wanted to post, but I cannot devote as much time to this as I would like, and so I offer it as your starter for ten in its slightly disjointed and unpolished form…

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Firstly, let me explode the myth that the outcome of care applications is inevitable and that therefore care proceedings are purposeless.

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Almost all care applications result in orders of some kind. Most result in permanent or long term removal, many in adoption. Only a very few are withdrawn because the evidential hurdle of threshold cannot be met. In that limited sense applications made are by and large justifiably made (The alternative viewpoint is that almost all applications succeed because the courts are a mere rubber stamp – I don’t subscribe to that view).

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But many applications result in different orders than originally anticipated or sought (supervision orders, residence orders or special guardianship orders) or with less draconian care plans (care order with a placement at home, a plan for eventual rehabilitation, a change in placement type, or identification of more suitable carers, more structured or substantial support package for parents or child, proper financial and support package for kinship carers). These changes in plan and outcome are on one level matters of detail, but it is in matters of detail that long term outcomes for children and families can be radically altered – the chaos theory of family law. Complaint was made at the review session that there is an increasing tendency for courts to micro-manage care planning and that this is inappropriate. In the first place I don’t think that this is an accurate representation of the law or of practice. But really, why shouldn’t care plans be scrutinised? If they are appropriate and properly thought through there will be no problem – detailed scrutiny is necessary where, as is sadly often the case, they are ill thought through or poorly justified. The extent to which courts scrutinise the detail of care planning is in direct correlation with the quality of the care planning, and the confidence of the courts in it.

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Court scrutiny, the involvement of a Guardian, appropriate activity on the part of parents lawyers, are all forms of wholly appropriate and effective pressure with which to focus minds and leverage better care planning on the part of Local Authorities. It is tempting to think that if Local Authority care plans achieve approval of the court for their care plans in most cases then we can trust them to do the job without bothering with the rigmarole of expensive and long winded court proceedings. Tempting but foolhardy. There is another line of thinking (that sometimes social workers or other Local Authority employees who have been in the job for just a little too long blurt out loud before they have had time to check themselves – the very jaded are oblivious to the raising of eyebrows all around them): ‘the court process is just jumping through hoops and ticking boxes, court ordered assessments are never successful: it’s just a waste of time’. And there’s the nub of the problem. We all despair sometimes of clients who mess up the hard fought for assessment, but when those who are making decisions about the permanent removal of children from their birth family start from an expectation that the parents will fail, decision making can be and is often flawed. And so, rather than court proceedings existing simply to make miseries of the lives of social workers and local authority managers, they exist to ensure that preconceived ideas do not act as a barrier to rigorous and appropriate attempts to explore ways of keeping children with their birth families before severing ties with them.

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Let this not be seen as a broad criticism of social workers or local authorities. They are stressed, overworked, undersupported, badgered by management (who themselves are under pressures of a different kind), and vilified by the public and the press. They can’t do right for doing wrong and it must feel as if lawyers and courts are all part of the perpetual bombardment of negativity that social workers must endure (not so very unlike lawyers). No reasonable person would expect them to get things right all the time, especially in the feverish climate of post Baby-P and swingeing public sector cuts. There are many pressures on social workers and local authorities in general and the interests and views of local authorities responsible for many children may not always be one and the same as those of individual parents or children. And that is where the court performs an essential role. I can think of many cases where it is immediately apparent on issue that something has gone wrong, and it is through the court process that this is remedied. 2 examples:

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• A case where a very young child was left for almost a year in the care of parents following the unexplained death of her twin sibling but where NAI by the parents was one possibility – it was only upon the belated issue of proceedings almost the appointment of a guardian that safeguards were put in place pending determination of the cause of injury and any possible perpetrator.

• A case where learning impaired first time parents were assessed without reference to their learning difficulties and without any appropriate support to enable them to access support or learning or understand what was required of them being put in place. They failed the assessment, and another more appropriate assessment had to be commissioned, causing delay, anguish and wasted expense.

There are many more.

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I don’t suggest that the motivation of social work professionals is anything other than genuine and child focused (with the odd bad apple as is the case in any walk of life), but the court process is an important driver in ensuring rigour of approach, proper investment of resource and forward planning, as opposed to firefighting. And rather than disempowering or frustrating good social workers, the process is beneficial to Local Authorities because their judgment is validated.

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The healthy challenge to care planning and social work that court proceedings entail come not just from parents’ lawyers intent on filling their pockets by stringing things out, but from Guardians and children’s solicitors too, and even from the Official Solicitor on occasion when acting for hard done by parents. These are people who are motivated not by ‘parent’s rights’ without regard for the needs of the child, but who are seeking further thought, deeper thinking, reappraisal by local authorities in order to ensure the best outcomes for children. And it is a combination of the hard work and dedication of social workers and other agencies along with the involvement of the court and the court based professionals that ensures better quality outcomes for children.

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Although the role of Guardians is itself something of a hot potato at present, the role of the Guardian as an inherent part of the court process is crucial (see Jacqui Gilliat’s excellent summary of why).

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But it’s not just about detail:

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Its about the big issues too. It’s about public confidence in the administration of justice – already very low, but (notwithstanding a widespread perception by a certain number of parents and parents campaigners that the judiciary are part of a grand state conspiracy to snatch children from the bosom of their families) it would inevitably plummet to new depths if there were no independent external scrutiny of a local authority’s powers.

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It’s about proper limitation of the powers of the state – the most draconian of powers that the state has are to imprison us and to take away our children. If those powers are not routinely subject to the scrutiny of an independent court what is left? It would be an odd kind of civilised society where those in dispute over contracts and road traffic accidents could call upon the court’s protection whilst children could be taken away from their parents forever without expectation that a judge would have authorised that life altering course. How do we explain that to our children?

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It’s about following through on our commitments to the fundamental human rights of both child and parent – our rights to family life without interference except where necessary for the protection of children, our rights to fair trial, a child’s right to life. The need to save costs does not render these fundamental principles dispensable, we cannot put fundamental elements of the social contract in suspended isolation during times of financial hardship.

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Local Authorities would be foolish to think they can get it right all the time, and recent history tells us that they do not. We should not kid ourselves that they will be able to do so in future without the watchful eye of the court upon them, and with 25 – 40% less available resource. What’s more, it would be wrong to burden Local Authorities and frontline social workers (who are so often decried as baby snatchers by the ill informed) with such weighty decisions without the protective ratification of the courts.

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There are ways – many ways – in which the system could be improved. But the prospect of the unfettered removal of children by agents of the state is frightening in the extreme.

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It is difficult to envisage what alternative framework is in the minds of the review panel – whether safeguards would be in the form of judicial review of a local authority or some form of tribunal. It is not immediately apparent what economic sense the creation of a separate and less skilled tribunal would make (recent policy has been to consolidate court management and tribunals into fewer and larger organisations), and it is hard to see what advantage such tribunals would present over magistrates or judges. The key distinction between a court and a tribunal is the availability of legal representation and the expertise of the decision makers (and no doubt in family cases the appointment of a Guardian). Those are crucial features which cannot be abandoned without significant consequences for public confidence in the administration of justice, an almost inevitable breach of Article 6 rights to a fair trial by failing to ensure access to justice, and poorer outcomes for children and parents.

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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.