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Family Practice
CAFCASS
The CAFCASS disaster drags on. On 14 September
Scott Baker J quashed the decision of the CAFCASS Board on 27 June
2001 not to proceed with the offer of self-employment to children’s
guardians. He stated that there needed to be further negotiations on a
short time scale.
In
the judicial review proceedings CAFCASS sought to disavow the
negotiations of the Project Team (appointed by the Lord Chancellor)
prior to implementation. In looking at the history of the case the
judge noted that there had been a need for a good deal of preparatory
work. From the start the guardians were to have the alternative of an
employed or a self‑employed contract. There was a consultation
document Support Services in Family Proceedings (1998) which
stated that in a new unified service it was expected that
practitioners would be employed or self‑employed.
After
1 April 2001 when CAFCASS came into being there was no discernable
change in the desire to negotiate self‑employed contracts. On 4 May 2001 the Board considered the matter and resolved to
retain the existing service and to offer self-employment that met the
Revenue test. The Chief Executive of CAFCASS wrote to NAGALRO on 6 May
that guardians would be offered a choice of contracts, including a
self-employed contract on a graduated fees basis. On 1 June CAFCASS
sent guardians a document of Frequently Asked Questions and Answers
about the contracts, which included a statement: ‘We are sure that
some want employment, some self-employment. The Board wants to offer a
choice.’
The
meeting of the CAFCASS board held on 27 June was on the same day as
the Chief Executive signed and served her evidence in the first
judicial review application. There was no suggestion in her evidence
that an option was to be no self‑employment. The Board had a
paper from the Chief Executive which considered the options. It was
not produced in evidence – one has to wonder why since the minutes
of the meeting were. They recorded that two other papers were
presented to the Board on 27 June, one supporting not offering
self-employment and the other arguing the contrary case.
The
minutes of the Board meeting recorded that the members wanted to see
only a “managed service”. Self-employment in any form was said to
be incompatible with this. The Board minutes stated ‘the key
messages need to be revised and sold as an honest decision’. One
member raised concerns that, throughout the consultation, CAFCASS had
not said that it needed only a managed, employed, service.
The
minutes also set out a timetable.
A letter to the guardians was to go out on 3 July. The decision
had to be approved by the Lord Chancellor, which was not done until 2
July. Even then the decision letter was not posted until 6 July.
Guardians were required to respond by 27 July, three weeks, including
postage time, in a holiday period, to make a decision which affected
their livelihood. ‘CAFCASS needs to improve its communication
skills’ the judge observed drily.
The
judge held that there was a complete volte face on 27 June.
‘A fair reading of the documents is required, and in my
judgement, right up to the bombshell of 27 June, the negotiations were
conducted with an offer of two forms of contract, self-employed and
employed. This is not a private law dispute, in which one party can
pull out at the eleventh hour. The issue here is one of public law.
When a public body conducts itself by following a particular course of
action, there is a legitimate expectation that a change of course will
be preceded by the opportunity to make representations about why it
should not do so.’
So
what had this public authority committed itself to, did it act
unlawfully and if it did, what should the court do about it? He held
that if CAFCASS had done nothing or said nothing to set up a
legitimate expectation, the situation would be different, but their
conduct could not be viewed in isolation. The Project Team and the
involvement of the Lord Chancellor Department formed a factual matrix
from which the conduct and statements of CAFCASS must be judged.
NAGALRO should have been given a proper opportunity to argue its case.
The
judge agreed that the chaotic situation caused by the dispute could
not continue and further delays would make the present chaos worse.
The dispute was entirely unhelpful to the Family Justice system but
the position had been brought about by CAFCASS because of its conduct.
The serious position did not override the unlawful conduct of CAFCASS.
The judge said at the permission hearing on 30 July that negotiations
should take place to resolve differences, but CAFCASS declined the
proposal of mediation stating in correspondence that the case was sub
judice. Clearly all the lawyers were on holiday!
In
fact the Board (of ten) voted against the idea by four votes to three.
Outside
court there have also been developments. The much respected Judge
Nigel Fricker has resigned from the Board. It would be interesting to
see his letter of resignation to the Lord Chancellor. The Director of
Communications, Joe Kuipers, ‘left the Service’ after a
disagreement. It is thought that there might be a huge budget
shortfall, made worse by the rent for one premises having been
overlooked.
There
is now a national crisis which can only get worse. There were at the
end of March 2001 some 860 guardians in England and Wales of which 113
were employed and the remainder self-employed. Of those it is thought
that 42% will not join CAFCASS, 37% will become employed and 21% are
undecided. The views of some 300 guardians are unknown, but it is
predictable that they are awaiting the outcome of negotiations. It is
without doubt the case that many of the most able have taken up other
work. Advertising is said to have produced 157 appointable people, but
they are bound to be less experienced.
What is to happen now? There is no space to
repeat the arguments outlined in this column on 29 June but they
remain valid. We are unlikely to get an admission of error but
foremost must be a commitment from CAFCASS to conduct an open-minded
reappraisal of their position with the backing of the Lord
Chancellor’s Department. Is that likely in policy or personnel
terms?
The argument, which CAFCASS sought to sustain,
that it had no connection with negotiations prior to the establishment
of the agency is astonishing. How can Government hope to set up
autonomous agencies, if prior assurances count for nothing? When
judgment was given there were representatives from the Treasury
Solicitor and the Lord Chancellor’s Department at court. They could
be seen in intense discussions with CAFCASS counsel. The Department
appears to remain determined to tough it out. How much further will
they allow this to go before they intervene?
Special
Educational Needs
The
Special Educational Needs And Disability Act 2001 (Commencement No. 1)
Order 2001 (SI 2001/2217) provided for the coming into force in England on 15 June 2001 of
certain provisions of the Act to enable regulations to amend the
Education (Special Educational Needs) (England) Regulations 2001.
Regulation 12 provides that where section 329A Education Act 1996
applies and a responsible body (typically a child's school) has asked
an authority to assess a child's educational needs the authority must,
subject to prescribed exceptions, notify the body and the parents of
their decision to assess or not to assess within 6 weeks of the
request being received. Parents must be provided with additional
information within this period.
Further
provisions were to be brought into force on 1 September 2001. These
included provisions relating to the education of children with SEN in
mainstream schools, the provision of advice and information to parents
of children with SEN, and arrangements for the resolution of disputes
about SEN related issues, the compliance by local education
authorities with SEN Tribunal orders, appeals to the SEN Tribunal, the
identification and assessment of educational needs and amending
statements. A new Code of Practice was about to be published.
That implementation has now been delayed until
2 January 2002 but although the amending commencement order (SI
2614/2001) was made on 18 July 2001 it seems to have passed by without
anyone drawing attention to it until late August. This is yet another
example of ‘initiative overload’, attempting to bring in too many
new schemes too quickly. In this case it is compounded by making
everyone do the preparatory work and then not telling them about four
months delay.
New adoption guidance
The
President of the Family Division, with the approval of the Lord
Chancellor, has issued guidance on the conduct of adoption
proceedings. It is be applied to all adoption or freeing for adoption
applications issued after 1st October 2001. Its aim is to reduce delay
and inefficiency and to improve the court service for everyone
involved in adoption proceedings.
There
are to be courts designated as adoption centres with special adoption
officers and adoption judges. Judges should keep close oversight on
the progress of adoption cases, so judicial continuity is very
important. Whenever possible, a case should always be listed before
the same judge, unless it would cause too much delay to do so.
Adoption
cases will be actively managed by the court. As soon as an application
has been issued, the adoption officer should, in consultation with the
adoption judge and unless the adoption judge specifically otherwise
directs:
(i)
liaise with CAFCASS and appoint a reporting officer or children’s
guardian
when
required;
(ii)
liaise with the adoption agency (if applicable) or local authority
which will be required to prepare a report;
(iii)
fix a first directions hearing, to take place about four weeks later.
Notice of the hearing should be given to the applicants, the birth
parents and any other person with parental responsibility for the
child, the adoption agency (if applicable) or the
relevant
local authority, and the reporting officer or children’s guardian.
The
applicants, the birth parents (if they wish), the reporting officer or
children’s guardian and the Schedule 2 reporter are all expected to
attend a first directions hearing, together with any legal
representatives. The judge may dispense with the attendance of a
particular person or with the hearing altogether if he considers it
appropriate to do so. In
a confidential serial number case the applicants should not attend the
hearing personally but should be available to give instructions.
At
the first directions hearing the judge should consider and give
directions as to the following matters:
(i)
in a contested case the suitability of the statement of facts;
(ii)
in cases where the child was not placed with the applicants by an
adoption
agency,
the filing of a statement by the applicants, explaining the background
to
the application, their reasons for wishing to adopt, and any other
relevant
information;
(iii)
tracing birth parents, particularly fathers, even if they do not have
parental
responsibility;
(iv)
a realistic timetable for the filing of reports and any other
evidence, including any necessary expert evidence and any evidence
from the birth family;
(vi)
in inter-country adoption cases or other cases in which the child will
become
a British citizen if an adoption order is made, notifying the
Home
Office and considering whether other requirements and guidance have
been complied with;
(vii)
disclosure as soon as possible of all or as much information as
possible
both
to the applicants and to the birth families;
(viii)
consideration of mediation or other alternative dispute resolution in
contested
cases, subject to preserving the confidentiality of the applicants
when
requested;
(ix)
considering whether the child should be joined as a party to the
proceedings;
(x)
considering whether the case needs to be heard by a High Court judge;
(xi)
fixing, if necessary, a second directions hearing after all written
evidence
is
filed;
(xii)
fixing, if possible and appropriate, the date and place for the final
hearing.
After
the first directions hearing, the adoption judge, in close liaison
with the adoption officer, should actively monitor the progress of the
case and ensure, in particular, that the prescribed timetable is being
adhered to.
Where
in the course of care proceedings the local authority propose, if a
care order is made, to place the child for adoption, they should keep
under active consideration during care proceedings whether they should
issue simultaneous proceedings to free the child for adoption. Courts
should enquire whether they are doing so and, in appropriate cases,
encourage them to do so. This may save much later delay, expense and
unnecessary
stress
both to adopters and to birth parents. By contrast, once a
child has been
placed
for adoption, a free-standing application to free the child for
adoption may add to delay, expense and stress and is rarely
appropriate.
So
as not to delay subsequent adoption proceedings, the court hearing the
care proceedings should, on making a care order, always consider and
give directions and
permission
for disclosure to prospective adopters and / or for use in subsequent
adoption proceedings of relevant documents filed in the care
proceedings. It wastes time and costs if an application has to be made
later. The findings of fact made in the care proceedings are often
important in later adoption proceedings. If the judgment or reasons
are not given in writing, consideration should also be given to
whether a transcript should be obtained and who will pay for it.
This
is part of a wider policy initiative on adoption. Provided the right
children are targeted this will be in the interests of children. But
we cannot forget that this will lead to more contested proceedings.
The other parts of the court system have to operate. Prompt legal aid
is essential. Local authorities and CAFCASS will need experienced
staff. This makes the current CAFCASS policy of happily shedding their
most experienced staff even more bizarre.
The
Government attitude seems to be put a policy in place, spin it to make
it attractive and compel others to seek to carry it out. The trouble
is that without satisfactory arrangements in all the constituent
parts, there is a greater likelihood that the overall policy will fail
and fall into disrepute. So if the Government genuinely want its
adoption policy to succeed, it has to put in the support systems. How
many people know about the Treasury Evaluation Team? It is said that a
group of four people, accountable to the Chancellor, hold the reins of
power on expenditure. They in reality decide these issues. And what do
they know of the world of children?
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