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CAFCASS
and the Guardians
On
30 July 2001, in the face of opposition from the Children and Family
Court Advisory and Support Service (CAFCASS), Scott Baker J gave
permission to the National Association of Guardians ad Litem and
Reporting Officers (NAGALRO) to pursue its application for a judicial
review of CAFCASS’ decisions in relation to contracts for
children’s guardians. NAGALRO
still hopes to engage in open and genuine negotiations with CAFCASS,
and the imminent prospect of losing perhaps 400 senior practitioners
has been, for the moment, averted. Until 11 September 2001, when the
application will be heard in full, courts will still have the
existing, experienced workforce from which to appoint guardians for
children in public law proceedings.
CAFCASS
decided, in June 2001, that well over 700 guardians who are currently
self-employed must become employees of CAFCASS or leave the service. For
some guardians, with 10 or 20 years’ experience and a substantial
portfolio of other work as expert witnesses, managers, trainers and
lecturers, this makes work in CAFCASS an unlikely prospect. The
proffered contract followed 18 months of uncertainty, of drafted
contracts, and of proposals for fixed or banded fees, in which it had
been the stated intention of first the Project Development Team, and
then the Chief Executive and the Board of CAFCASS, to continue with a
mixed economy of employment and self-employment.
A
GOOD IDEA
An
integrated Children and Family Court Service was expected by many
practitioners and commentators to be ‘an extremely beneficial
development’ and to ‘improve the service to families and
children’ (The Advisory Board on Family Law Third Annual Report
1999/2000 (Lord Chancellor’s Department, 2000)). They thought that a
coherent and integrated service could better provide a range of
functions, including the vital provision of training for all staff in
relation to domestic violence and contact. The subject of domestic
violence and its impact on child development, safety and contact is a
prime example of the core themes common to public and private law
work. It is an area in which the canon of knowledge, the values and
the best practice from both the former family court welfare service
and the guardian service offered a rich prospect of cross-fertilisation
and professional development.
WHAT
ARE THE PROBLEMS?
There
are serious and far-reaching consequences of the way in which CAFCASS
is approaching its responsibility to vulnerable children in public law
proceedings, and indeed of the entire ethos that permeates every
activity of this new agency. Those consequences go far beyond the
concerns of a group of guardians (described by CAFCASS as
‘troublesome’) about the terms on which their services are
contracted.
The
time-scale for the creation of CAFCASS was extremely tight, depending
as it did on the legislative timetable and the reorganisation of the
probation service. The Children Act Sub-Committee has said, in its
Fourth Annual Report 2000/2001 (Lord Chancellor’s Department,
2001):‘We find it extraordinary that a development as important as
CAFCASS was treated in this way, and we are left with an overriding
concern that the aspirations for the service which we expressed in our
previous report may have been lost in the rush to ensure that the
service is in place by the given date, and that the funding required
… may not be available.’However, these are not teething problems.
Nor are they entirely logistical or fiscal. In its attempt to create a
centralised, strongly managed service, CAFCASS has erected an edifice
without the essential foundations. It has apparently failed to
establish first: ‘What is it that we are to provide or achieve?’;
before asking the secondary questions of: ‘How best can we organise
ourselves to do that?’ and: ‘What will people need to have, to
know and to be able to do?’. That failure is manifested in numerous
aspects of CAFCASS’ shaky emergence as a non-departmental agency
spawned by the Lord Chancellor’s Department. Flaws are glaringly
evident in the way CAFCASS is approaching the recruitment of staff,
the provision of standards and training.
RECRUITMENT
OF STAFF: THE FAMILY COURT ADVISER
Self-employed
guardians received a letter informing them of the peremptory removal
of the self-employment option that has provided such flexibility and
diverse expertise to the service for 17 years. The following day they
could read in the national press an advertisement to recruit staff
with 3 years’ post-qualifying experience to undertake the work of
both a guardian and a family court welfare officer.
The
advertisement reflects a lack of basic knowledge. It refers to
‘representing the wishes and feelings of the child in family court
proceedings’ and to ‘ensure that the voices of the children are
heard’. However, it makes no mention of the welfare or the best
interests of the child. The ‘Job Summary’ goes a little further
and mentions the child’s needs, but is very poorly expressed and
fails to state that the child’s welfare is the paramount
consideration. Perhaps most revealing is that the child is referred to
as ‘it’.
The
Contract of Employment contains equally serious flaws. CAFCASS’
definition of a ‘client of the service’, for example, would
include the judge and the schoolteacher. The local authority, always a
party in public law proceedings, also becomes ‘the client’,
undermining the central tenet that the child is the guardian’s
client.
The
powers and duties accorded to guardians by law clearly state that the
individual guardian ‘be under a duty to safeguard the interests of
the child’ (Children Act 1989, s 41(2)(b)). Inquiries into child
deaths from abuse or neglect, and into abuse of children in care, have
identified the dangers for children when there is no independent
person to protect their interests, and when adults agree. The
Field-Fisher Enquiry into the Death of Maria Colwell (HMSO, 1974)
demonstrated the need for an independent person to represent the
welfare and best interests of the child. Hence the introduction of the
guardian ad litem in the Children Act 1975, s 103. One of the most
dangerous aspects of CAFCASS’ sloppy attempts to generalise is its
assumption that the reaching of agreement between adults will be in
the best interests of every child.
CAFCASS
fails to distinguish the guardian’s role from the important and
necessary, but not sufficient, task of ascertaining and representing
children’s wishes and feelings. As one High Court Judge said in
1998:‘The guardian ad litem is not a welfare officer. He or she is
the independent voice of the child and the child’s protection
against bad social work practice and legal delays’ STANDARDS
CAFCASS’ public comments reflect an apparent perception that
self-employed guardians have been a motley collection of lone rangers,
accounting for their work and expenditure to no one. Guardians have
worked to the detailed National Standards for the Guardian ad Litem
and Reporting Officer Service (Department of Health, 1995). Those
standards were incorporated into training and appraisal systems and
into the National Induction Training Programme for the guardian
service. They were used to assess the suitability of individual
guardians for re-appointment.
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