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The
National Association of Guardians Ad Litem and Reporting Officers
The
Solicitors Family Law Association
The Law
Society
GLOSSARY:
Children‘s Court Advisor: In the
absence of an agreed term for the ‘caseworker’, this term has been
used to describe the former Guardian ad Litem, Court Welfare Officers,
members of the Official Solicitor’s Staff, who will be working for
CAFCASS.
Representation: This refers to legal
representation.
Separate Representation: This
refers to cases where the child and Children's Court Advisor have
separate legal representation.
1.
Introduction
The
tandem system of representation evolved to meet very specific needs in
child protection work after a number of non-accidental deaths of
children such as Maria Colwell. It
would be a retrograde step for child clients if the checks and
balances of the present system and the current standards of
enquiry/representation were to be diluted or undermined in any way.
In our
view, there are many benefits of the existing tandem model of
representation, of which we have taken account when looking at the
possible models following the establishment of CAFCASS.
In drafting this paper, however, we have borne in mind our duty
as solicitors to the Community Legal Service Fund.
Article 12 United Nations Convention on the Rights of the Child states:
"Parties shall assure to
the child who is capable of forming his or her own views the right to
express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age
and maturity of the child and, for this purpose, the child shall in
particular be provided the opportunity to be heard in any judicial and
administrative proceedings affecting the child, either directly, or
through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law”.
In our
considerations of a model for CAFCASS, we have taken account of the
provisions of Article 12. We
have also noted comments made about the present tandem model of
representation. In
particular:
a.
The
Responses from the Judiciary and Family Court Business Committee to
Chapter 4 stated:
" The two concepts of
welfare and representation are entirely separate and in my view it is
highly undesirable that these issues be confused.
If a child is party to proceedings, he/she should be entitled,
as is any other party, to legal representation so as to give
equivalence before the law. The welfare officer does not attain party
status himself. It is the
child who, only by reason of legal disability (age), is deemed unable
to take party in proceedings without an adult.
Legal representation for children should be of the highest quality.
It is difficult
to envisage lawyers of the appropriate calibre being attracted to a
unified service’s in-house legal team where it will be necessary to
cover the whole of England and Wales … The present system of a panel
of solicitors nation-wide has produced a fairly small number of highly
trained, experienced and competent solicitors, most of whom are senior
in their profession. It
would be foolish to imagine that solicitors of this standing within
their profession would leave partnerships and practices and take up
employment within the unified service.
The result would be a reduction in quality of legal
representation to children. All
children subject to legal proceedings at present have access to
specially qualified and experienced legal representatives. The panel
system has in fact produced a network of solicitors nation-wide who
are providing a high quality service at reasonable rates, legal aid
rates substantially lower than private rates. I suggest the risk of reducing the quality of service by
requiring a provision to be made in-house is high.”
b. The Report
of the Children Act Sub-Committee on the Subject of the Separate
Representation of Children in Public and Private Law Proceedings under
the Children Act 1989, approved by the Lord Chancellor’s Advisory
Board on Family Law, stated at Paragraph 4.22:
“The view from the Family
Proceedings Court was strongly in favour of joint representation.
The Stipendiary Magistrates Family Panel argued that guardians
were not equipped to handle the legal aspects of cases: successful
negotiation required the guardian and solicitor to act as a team.
Nicholas Crichton, a Stipendiary Magistrate, wrote:
It is essential that the guardian ad litem have legal
representation in order to properly protect the child’s interest.
The ‘tandem’ system ensures the most effective representation of
the interests of children. Only
the most serious cases come to court and, in those circumstances, it
is important that children have the best possible representation.
The role of solicitors in negotiations to resolve cases is also
crucial.".
The FLAB
report at paragraph 4.32 continued:
"The
solicitor for the child also has, in our view, an important role in
negotiating the outcome of the case with the lawyers instructed
by the local authority and with the parents.
Consent orders are frequently the result of negotiation in
which the solicitor has played a pivotal role.
The presentation of an agreed order does not necessarily mean
either that there has been agreement throughout or that there has been
unnecessary representation for the child.”
c.
The
Report of the Children Act Advisory Committee for 1994/95 commented
that:
"Children work is a specialised area which should only be undertaken
by advocates with appropriate knowledge, experience and personal
qualities."
d.
Dame Margaret Booth in her report 'Avoiding Delay in Children
Act Cases' stated that:
"All solicitors and barristers undertaking children's work, including
private law Children Act
cases, should be adequately trained."
2.
‘Core’ principles
There
are certain main principles which we regard as fundamental to the new
service.
a.
Child Focused
·
The service must be child focused and led by children’s needs, and
never by funding issues. All
policy decisions and structures should flow from this principle.
·
The over arching aim for CAFCASS must be to provide a high quality service
to those children and their families who have been, are currently, or
may be involved in court proceedings; it involves both establishing
the wishes and feelings of the child, and making professional
judgements about the child’s best interests.
b.
Independence
·
Representation of children, both welfare and legal, must be, and be
seen to be, independent of the State, and none of the new
service arrangements should in any way jeopardise this principle.
·
Whatever model of management is chosen should reflect the integrity,
independence and quality of professional standards.
·
There must be personal and individual accountability for work.
c.
Professional standards
·
There must be a named Children's Court Advisor appointed personally by the
court.
·
The Children's Court Advisor, who will undertake current Guardian ad Litem
tasks, must have, as a minimum qualification, a social work
qualification and experience in social work, which is the preferred
requirement for all entrants to the new service.
·
A continuing training programme must be established from the outset of the
new service, which should include formal Induction training for all
new entrants to the service, as well as extensive post-qualification
training.
·
We must guard against dilution of skills.
d.
The child’s voice
·
The current party status of children in public law cases must be
maintained.
·
The issue of a child's party status in adoption proceedings will need to
be addressed within the current debate on adoption and take into
account the implications for representation of the Human Rights Act.
·
The child who is a party to proceedings must have the right to be
represented independently of the State and other parties.
·
Separate representation of the child from the Children's Court Advisor in
public law proceedings must be by an accredited representative from
the Children Panel representation and/or an equivalent accredited
representative from the Bar.
·
In those cases where the child is a party there should be access to
independent legal and welfare representation.
·
Where there is a contested case on any private law issue, there should
always be an investigation into the welfare of the child, and the
person responsible for this should advise the court at an early stage
whether or not legal representation is necessary.
In all private law family proceedings the court should have the
discretion as to whether or not the child should be made a party. The court should be required by the court rules to consider,
both at an early stage in proceedings and from time to time as the
case proceeds, whether the child’s legal representative may not be
required to attend a particular hearing.
(To this extent we have altered the recommendation made in the
Association of Lawyers for Children's Response to the Consultation
Paper where it was suggested that the court might decide whether or
not the child should continue to be legally represented.)
·
The child of sufficient age and understanding should be entitled to make
his/her own application for legal representation.
·
There are certain categories of private law cases where there should be a
presumption in favour of representation.
These are where:
-
the child is 12 or over;
-
termination of contact is an issue;
-
there is an implacably hostile parent;
- the court is considering
a direction for medical/psychiatric reports on the child;
- there are concerns about
the welfare of a child within the family, which falls short of the
need to implement child protection procedures;
- a parent is under a
disability and represented through a litigation friend;
- an exclusion order is
being requested or considered by the court;
-
there are unusual, complex or difficult issues involved, for example those
with a foreign element, immigration problems, permanent removal from
the jurisdiction, certain cases under Part 4 IV of the Family Law Act.
The
organisation should have the capacity, and be required, to consider
making provision for the voice of the child and representation in
uncontested cases.
3.
Possible models
·
In preparing this paper, we have focused on four of the five models, which
we understand the Lord Chancellor's Department is considering.
The model we support (a combination of models 2 and 3) is based
on new entrants to the service.
·
The effectiveness of any in-house legal service to represent children is
dependent upon how it is resourced, its conditions of service, and the
quality of its management.
·
We have not made any proposals with regard to transitional arrangements,
to cover the variety of experience across existing services to be
amalgamated.
·
In considering each model, we have set out the positive and negative
factors, which are relevant:
A. Model 1
Crown Prosecution Service model
By this
we understand a model which has employed solicitors dealing with
advice in-house, as well as the advice to, and representation of,
child clients.
Negatives
·
The risk of a lack of continuity of a lawyer for each case, as
demonstrated by the current CPS model.
·
There will be a difficulty in recruiting and retaining solicitors with a
sufficient degree and breadth of experience and expertise on the range
of issues dealt with by Children Panel members: a. existing Children Panel solicitors may not wish to work for
such a service and b. the
lack of day to day contact with other matters, eg immigration,
housing, Criminal Injuries Compensation claims, welfare benefits, will
de-skill legal practitioners.
·
Such a service may leave the child who is competent to directly instruct a
lawyer with very little choice.
·
The risk that because the Children's Court Advisor and lawyer work for the
same service, there may be a lack of critical analysis of each other
and the blurring of boundaries between the roles.
·
There will be areas of tension for the lawyer in this model, between the
duty owed to the employer, as opposed to the professional duty of
independence and impartiality owed to the client, and to the court.
·
There is a likelihood of huge cost implications.
·
The risk of reliance on agency solicitors if there are problems in
recruitment. This
may be difficult because there may be fewer solicitors available and
qualified to obtain a Legal Services Commission Franchise Contract.
·
Will members of the public regard an in-house legal team as independent of
the State?
Positives
·
If it is a large enough service, there may be more immediate access by a
Children's Court Advisor to legal advice.
·
There may be a more extensive, overall administrative support system than
is presently available to the present distinct welfare services.
B.
Model 4
An in-house legal service providing all legal preparation and negotiation
work and instructing solicitors for 'fully fledged' hearings
We
understand this model to propose a mixture of employed and external
lawyers, with rather more blurred boundaries, ie sometimes
representation undertaken by in-house lawyers, sometimes not, perhaps
depending, for instance, on the complexity of the case or work
pressures.
Negatives
·
The risk of a lack of continuity of a lawyer for each case, as
demonstrated by the current CPS model.
·
A lack of actual or perceived independence from the State of legal
representation.
·
There may be areas of tension for the lawyer in this model, between the
duty owed to the employer, as opposed to the professional duty of
independence and impartiality owed to the client, and to the court.
·
The in-house lawyer and Children's Court Advisor will have a right of
access to each other's files. This
will require a carefully structured protocol to cover situations where
there is a conflict between the two workers.
·
Where a child is also a parent and his/her child is the subject of
proceedings, there would be a problem of conflict if the same service
sets out to represent both.
·
There will be some duplication of work between the person preparing the
case and the person instructed as advocate.
·
The relationship between the in-house lawyer and out-house lawyer could
cause confusion for the Children's Court Advisor and child.
·
There would be an in-house lawyer, in-house Children's Court Advisor, and
out-house lawyer and therefore the system could prove cumbersome.
For example, which lawyer would meet the child, which lawyer
would conduct negotiations with the parties, and with which lawyer can
the child have a confidential relationship?
·
Job satisfaction may be reduced by the piecemeal approach to the legal
work.
Positives
·
The Children's Court Advisor will have access to legal advice even where
the child is not a party. The
trigger for external legal representation will be the granting of
party status to the child.
C.
Models 2 and 3
2.
In-house legal representatives providing advice to the
management, dealing with training, but not carrying out advocacy tasks
We
understand this model to have employed lawyers to advise in-house:
advice and representation of children undertaken by lawyers in private
practice, directly instructed either by the Children's Court Advisor,
on behalf of the child, or by the child him/herself, if competent to
do so.
3.
Similar to 2, but with the in-house lawyers providing advice to
the Children's Court Advisors, but not to children, and not providing
advocacy services
We
understand this model to have employed lawyers advising in-house, and
doing all casework on behalf of child clients, but with
advocacy/conduct of hearings undertaken by external lawyers.
We
favour a combination of models 2 and 3, taking on as many as possible
of the present positive aspects of the current system of tandem
representation. With this in mind, we make the following proposals:
·
External lawyers should conduct all casework and representation of child
clients.
·
All services should have employed lawyers to provide the service with
basic legal advice and training, whilst recognising that the majority
of Children's Court Advisors will seek the advice of the child's
designated lawyer for advice on case specific legal points.
·
The roles of the external and in-house lawyers will be complementary and
non-competitive.
·
In-house lawyers should advise management, giving advice on, for example,
policy, research, training and service issues, but should not
generally undertake an advocacy role.
If in-house lawyers are to give general advice only, to
management and to the Children's Court Advisor, then they should not
go on to the court record as acting in any case. However, in the
limited circumstances where a Children’s Court Advisor does require
separate representation from the child, or his/her own legal
representation, (for example in a County Court adoption case, or on a
Parental Order application) the Advisor should have access to legal
representation from CAFCASS.
·
Sufficient numbers of lawyers must be employed to provide core in-house
legal advice.
·
Equality of arms requires that the legal representation of the Children's
Court Advisor should be of the same quality and with no less funding
than any other party. Lawyers
in-house should be recruited from members of the Children Panel and
should have sufficient expertise on eg the Human Rights Act, Judicial
Review, complaints under s26 Children Act 1989, party status in
non-party proceedings.
·
The advantage of this Model is the maintenance of the existing high
quality and consistent representation which the current system
provides.
·
Where there are, or should be, applications for Judicial Review against
the new service, the legal advisor available within CAFCASS would be
able to look after the interests of the Children's Court Advisor
and/or the service, without finding him/herself in a position of
professional conflict, which would arise if CAFCASS also provided the
legal representation of the child.
·
The choice of the child’s solicitor will be made by the Children's Court
Advisor, whose decision will be informed by his/her previous
experience and by information from administrative staff within the
service.
D. Answers to Questions posed
in the Children and Family Court Advisory Service letter of 7 March
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