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Family Practice
Seismic events
In the last few
weeks we have witnessed probably the most important events affecting
children who are the subject of legal proceedings since implementation
of the Children Act1989. The
Children and Family Court Advisory and Support Service (CAFCASS) has
started its work. In the long term, as we have always argued, it is a
necessary development. Its beginnings are inauspicious.
Secondly the Court of Appeal has decided in Re W and B
(Children: Care Plan) (2001) Times, June 7, [2001] All ER 285 that the
courts can, in certain circumstances, supervise what happens after the
making of a care order if care plans are not implemented.
CAFCASS reviewed
The CAFCASS crisis about the
contracts of children’s guardians remains unresolved. On 13 June
Forbes J gave the National Association of Guardians ad litem and
Reporting Officers (NAGALRO) permission to seek a judicial review of
CAFCASS plans for self employed guardians and in particular the
decision made
in February to pay them on a banded rates (or graduated fees) basis.
CAFCASS is to file its reply by 27 June.
The
majority of guardians are self-employed and have been paid an hourly
rate. They say their professional status is being undermined because
the contracts offered by CAFCASS do not take account of the complex
and demanding work they do. They say the scheme is inequitable,
unreasonable and contrary to the necessary work and independence of
the guardians. It
is estimated that employed guardians are being offered 25-30% below
what they might reasonably expect given their level of experience and
expertise. It is reasonably safe to assume that fees for self-employed
guardians have been calculated at a similar rate.
The Government
argue that the CAFCASS budget is up 3.8% on the previous year. They
have so far declined to disclose how or when that was calculated.
Indeed it is not clear that the present management of CAFCASS know.
The attitude of the Lord Chancellor’s Department appears to be that
CAFCASS can apply for an increase in the budget if they think it is
insufficient – knowing full well that it would not take effect until
the next financial year. The present CAFCASS executive was presented
with that budget as a fait accompli on their arrival and must now see
the management of it as a poisoned chalice. 'It's your agency, get on
and run it with the money available'; what convenient handwashing - or
fear of a Chancellor or two.
What is equally
obvious is that the authorities are determined to exercise cost
control, either through employed guardians or through fees per case
for those who remain self-employed.
CAFCASS and the Lord Chancellor’s Department argue that the
Revenue requires the imposition of fees per case if guardians are to
remain self-employed. In so far as CAFCASS has relied on this in
reaching its decisions about contracts, it would seem to be
misconceived and potentially reviewable. The suspicion must be that
the Department wants fees per case (as it imposed on the Bar), and to
bring contractors within that control is pressing CAFCASS to use any
means at its disposal, including the Revenue, to achieve it.
The conspiratorial
view would be that both CAFCASS and the Lord Chancellor’s Department
would be very happy to have the existing self-employed guardians leave
the service. They provide a standard to which neither organisation
aspires. They provide a focus for continuing to fight for that
standard. Without them it will be easier to reduce the budget to a
level comparable with the former court welfare service, where reports
to the courts within 12 weeks and without any real representation of
the wishes and feelings of the child become acceptable. That is
probably unfair to CAFCASS employees, but unless they stand up for the
standards, they give the appearance of acquiescing in a hidden agenda.
There are some
simple observations which those engaged in the conflict might wish to
consider.
1. A costing review and job evaluation should be
undertaken in an open manner. Clearly the Project Team which set up
CAFCASS did not understand guardian's work. Discussions at regional
forums held by CAFCASS have largely produced conflict and anger. The
CAFCASS Board need to see the proposed contracts and should be
involved in evaluation. What standards are the courts expecting? What
will Children Panel solicitors need from guardians in order to provide
adequate representation? CAFCASS should at least avoid the appearance
of seeking to reduce skill levels.
2. Children’s guardians cannot expect to maintain the
same level of independence nor the same unchallenged accounting
systems as they have had for the last twenty years.
3. Local authorities may want
to curb the powers
of guardians who have exposed too many gaps in practice
in the past, but it should be sufficient for future protection
against some of the poor guardian practice that has existed, that the
new organisation will have an independent management structure to
which guardians will be responsible.
4. The moratorium on implementation of the new contract
should be extended indefinitely. The self-employed guardians are a
diminishing problem in any event. Clearly CAFCASS will not be
employing more people on the existing basis. Too complicated to wait,
it is said; the Revenue will not wear it. How about some government?
5. Get real. In its acknowledgment of service of the
permission application, CAFCASS attacked the judicial review
application on the basis that the decision concerning the contracts
was not made by CAFCASS. Whether or not this is legally accurate, it
is fatuous. The Board through its Chairman and the Project Team has
clearly been engaging in negotiations and offered a contract which
they wished to have accepted.
6. The fees per case system is as inappropriate for the
work of guardians as the Lord Chancellor eventually accepted it was
for solicitors. Two recent developments amply illustrate that the
volume and complexity of work make it impossible to ascertain
appropriate fee levels in advance. First is the decision in re W and
B, discussed below. Secondly Section 12(5)(b) of the Criminal Justice
and Court Services Act 2000 provides where a supervision order is made in family
proceedings, the proceedings are not to be treated as concluded until
the order has ceased to have effect. This is a rather curious
provision which appears to mean that proceedings could continue
perhaps for three years with no final order. What scale fee would a
self-employed children’s guardian be entitled to for holding a case
for three years?
CAFCASS’
view of the service it can offer to children is a budget-led managed
service on the probation model. Although they say they are optimistic
about a solution to secure a sustainable future for CAFCASS and the
guardians’ service, the battle lines are being drawn for the
judicial review. CAFCASS and the Lord Chancellor's Department appear determined to
confront the guardians and, unless ordered by the Administrative Court
to reconsider their decision, to force them to accept the contracts or
leave the work. Finding
a balance between, on the one hand,
maintaining independence and paying a reasonable rate for
children’s guardians and, on the other, having them operate in a
managed, financially controlled system was never going to be easy. It
has been made more difficult by having politics played behind the
scenes. The real test for the judicial review is whether those games
can be exposed and challenged.
Without some
urgent action we will look back on the inauguration of CAFCASS as the
end of the best standards of representation for children, rather than
what it could and should be, the beginning of an innovative and
exciting opportunity. If the Government does not respond positively in the next
month, it is likely to be too late. It is clear that many children’s
guardians are already making contingency plans to leave.
There has of
course been a political vacuum. It will continue for a while since the
Minister in the Department with responsibility is new to this area of
work. Rosie Winterton has
the CAFCASS prize within family policy.
As an Honours graduate in history perhaps she had better mug up
on why it was thought essential for children to be well represented in
the first place, otherwise Sir Humphrey will continue to avoid the
more penetrating questions! On 2 July Cherie Booth launches an information pack sponsored
by the NSPCC and CAFCASS for children involved in care proceedings.
She will need to inform herself about the politics which will cause
children much more damage than any pack could repair.
Supervising care
plans
In one of, if not
the, most important cases since the Children Act 1989, in re W and B
the Court of Appeal has overturned established practice in care
proceedings, by permitting referral back to the court after the making
of a care order in certain circumstances.
The children’s guardian could be responsible for making the
referral.
This decision is a
remarkable piece of judicial legislating, born out of frustration with
government reluctance to either find the time or the will to make
changes which the courts have been pressing for some time. The
Department of Health is said to be considering whether to appeal to
the House of Lords, but given the strength of judicial support for
change, it may be this would be unwise.
Thorpe LJ analysed
whether justice was done by the division of roles between the judge
and the local authority at each of three stages: pre-trial and trial,
judgement and the period after a care order. He expressed the view
that there was no problem at the first stage. He noted that there
could be a difficulty at judgment stage because the judge had a duty
to make the child's welfare paramount. How could the judge discharge
this duty if his evaluation conflicted with the outcome to which the
order would lead? At the third stage he accepted that the statutory
rights of adult respondents provided a sufficient remedy where there
was a fundamental failure to implement the care plan. But he was not
satisfied that the child was protected, because the guardian had to
drop out and no one had either the locus or funds to apply on behalf
of the child.
In examining the
relationship of the Human Rights Act and the Children Act he was
satisfied that there was no fundamental incompatibility. To the extent
that case law had developed in a manner which prejudiced parties'
human rights, there were two major adjustments which should be made.
The judge should
have a wider discretion to make an interim care order where the care
plan seemed inchoate or where the passage of a brief period would see
the fulfilment of an event or process vital to planning and deciding
the future. Re J (Minors: Care Plan) 1994 1 FLR 253, Re L (Sexual
Abuse: Standard of Proof) 1996 1 FLR 116, and Re CH 1998 1 FLR 402 had
to be revisited. The judge had to be free to defer making a care order
until satisfied that the way ahead was no longer obscured by an
uncertainty that was neither inevitable nor chronic.
The greater
concentration on the quality of the care plan should extend to a
collaborative assessment of its essential milestones should be
elevated to starred status, details which the judge should decide if
the parties could not agree. The implication is that the care plan
should be analysed as to its critical parts and be specifically
approved by the judge.
There are problems
with this approach. Local authorities may become even more reluctant
to take care proceedings and be involved in the complexities, not only
of the evidence, but also an interdisciplinary care plan with a need
to specify the detail to be implemented, whether or not the resource
can be provided or controlled by the authority. Ultimately it may only
be by damages claims that authorities will be deterred from leaving
children unprotected in damaging families.
Thorpe LJ said:
'the most general concentration of misgiving, certainly in the minds
of guardians and forensic experts, was the absence of any overriding
mechanism for intervention in those cases where the care plan approved
at trial was frustrated by unforeseen change of circumstance, lack of
resources, neglect or by any other factor’.
He quoted Lord
Irvine speaking in December 1996: 'An incoming government will wish to
give serious consideration to, and consult on, restoring to our judges
the ability to tailor court orders to meet the justice of the
particular case'. (Presumably he actually meant the opinion of the
judge rather than justice.) Thorpe
LJ commented that at the President's conference in 1997 officials from
the Lord Chancellor's Department and the Department of Health agreed
to embark on a collaborative review of the desirability of
reintroducing a limited role for the guardian ad litem as well as for
the court in cases where the local authority had embarked on the
implementation of a final care order. Principal milestones would be
starred on the basis that the subsequent failure of the local
authority to achieve a starred milestone would trigger the re-entry of
the guardian ad litem with a right of application, again only in
exceptional circumstances, to the court that made the care order –
an approach never discussed or adopted by ministers, the Department of
Health noted.
Thorpe LJ
concluded: ‘A failure to reach a starred milestone within a
reasonable time of the date set at trial should reactivate the
interdisciplinary process that contributed to the creation of the care
plan. At a minimum the authority must inform the children's guardian
of the failure. Either the guardian or the authority should then be
able to apply for further directions.’ In order to protect the
parents’ rights, they would have to have the same opportunity of
application.
Hale LJ, concerned
to limit the scope of applications, put it thus:
'Where elements of
the care plan are so fundamental that there is a real risk of a breach
of Convention rights if they are not fulfilled, and where there is
some reason to fear that they may not be fulfilled, it must be
justifiable to read into the Children Act a power in the court to
require a report on progress. In effect such vital elements in the
care plan would be 'starred' and the court would require a report,
either to the court or to the guardian ad litem (in future to CAFCASS)
who could then decide whether it was appropriate to return the case to
court.’
‘There is nothing in the Children Act to
prohibit this. Simply there is nothing to allow it. The courts have so
far been true to the division of responsibility underlying the 1989
Act and declined to introduce it. But when making a care order, the
court is being asked to interfere in family life. If it perceives that
the consequences of doing so will be to put at risk the Convention
rights of either the parents or the child, the court should be able to
impose this very limited requirement as a condition of its own
interference. If the care plan is reunification, then the court should
be able to ask to be informed if this does not take place within the
timescale envisaged in the care plan. Usually it will not need to do
this because by definition the family will still be heavily involved
and should be able to act if the need arises. If the plan is
'permanency' outside the birth family, again the court should be able
to ask to be informed if this has not happened within a reasonable
timescale. The report should be addressed to whether there is such
good reason to believe that the Convention rights of the child or any
other person are, or are proposed to be, broken that it is appropriate
to invoke the powers of the court to remedy it.’
The
Court noted that there
were no more than about 200 judges who could make care orders and
proposed that an application concerning a failure to achieve a starred
milestone should be made only to a judge. It
was speculatively estimated that if this proposal was introduced it
would be invoked in approximately 200 cases per year since
the procedure was only there to avoid or prevent the breach of an
Article 6 or 8 right. Given that
in 60% of cases in a recent research study care plans had not been
carried within a year of the order, this figure may indeed be
speculative. There is the further problem that family
lawyers have now got human rights oozing out of every pore. For local
authorities the more time spent in court having plans reviewed, the
less time they can spend on providing the necessary services. Finding
the balance of case control will not be easy.
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