Nagalro response to the Cafcass protocol for the prioritisation of casework.

Nagalro response to the Cafcass protocol for the prioritisation of casework.

Nagalro is in the process of investigating the decision by Cafcass to only allocate the highest priority work in South Yorkshire and Humberside.  Nagalro is very concerned to read the details of these steps.  Whilst the measures are currently limited to South Yorkshire and Humberside, these areas are not, in our experience, significantly different to other parts of the country and so an extension of the protocol to other areas cannot be ruled out.  This development is, in reality, a working out of the consequences of years of underinvestment in the family courts, which were struggling to cope, even before the current pandemic.

Although we are sympathetic to the practical difficulties that Cafcass finds itself in as a result of COVID-19, Cafcass's decision to not allocate certain cases (and hence children) can only have one of two possible consequences.  The court may decide to delay the proceedings until the case can be allocated; this will be damaging to children and families.  One of the core principles of the Children Act 1989 is that delay is presumed to be contrary to the best interests of the child.  The other route would be that the court proceeds with the case based on the available information.  That approach would mean that the court would not have any direct information about the wishes and feelings of the child in decisions which will determine the future direction of those children’s lives.  This would also involve the court turning its back on the country’s obligations to the child under the UN Convention on the Rights of the Child and, in particular, article 12. 

We are particularly concerned that the Cafcass Priority Matrix indicates that Family Court Advisers will not be allocated in cases where a report has been ordered by the court but Cafcass takes the view that no safeguarding issues have been identified.  In many family cases, we are repeatedly explaining to parents that they must comply with court orders, even where they disagree with them and yet they will see that Cafcass can ignore a court order with apparent impunity.

We question whether Cafcass has done as much as it could have done to manage and plan for the demands placed on it.  Our members tell us that, in a number of cases, Cafcass has made decisions to 'decommission' experienced self-employed practitioners, or created a situation where a self-employed practitioner has felt they have no option but to resign.  We have recently had discussions with practitioners, with many decades of experience, who have been forced out of Cafcass because they were unwilling to accept cases (usually child arrangement orders) where they did not have the requisite knowledge and experience, even though they had a lifetime’s knowledge of complex and demanding care proceedings.  We are concerned that Cafcass has sometimes been profligate with the human resources and goodwill which were formerly available to it and that children will now bear the cost of this.

Where Cafcass is not able to provide the court with reports which are needed we would urge the court to consider granting the parties permission to instruct an independent social worker as a single joint expert to carry out this work.  Whilst we appreciate that this will involve additional costs to the legal aid fund and to the parties who do not have legal aid, this is the inevitable working out of the failure, over many years of successive governments’ to properly fund the family justice system.

We note that Cafcass states, in the formulation of 'the Cafcass protocol for the prioritisation of casework' that 'the national family justice recovery group, including senior judges, HMCTS, MOJ, DfE, and ADCS have all been sighted through its development and sign off '.  Because of the rather awkward and ungrammatical way in which this is worded, it is impossible to know whether judges have been consulted about this, or if they were, what their views were.  To our knowledge, there has been no consultation with legal and social work practitioners’ groups or with anyone, such as the Children’s Commissioner, who can speak for the children who will suffer the consequences of this.

25 November 2020