"Bringing Families Together"

"Bringing Families Together"

Monday, November 15, 2010

Cafcass ‘not fit for purpose’

Thanks to Lisa from Jump.

Commons Public Accounts Committee brands Cafcass ‘not fit for purpose’

Committee does not share DfE’s confidence that ‘all will be well by 2011’

The Commons Public Accounts Committee has published a report on the Children and Family Court Advisory and Support Service's response to increased demand for its services.

The Rt Hon Margaret Hodge MP, Chair of the Committee of Public Accounts, said:

'Cafcass was ill-prepared for the very large increase in care cases in 2009-10 which followed the Baby Peter tragedy and caused chaos in the family justice system.

'This lack of readiness was a direct result of the organisation's continued failure to get to get to grips with the fundamental weaknesses in its culture, management and performance. It is still dealing with a legacy of low morale, unacceptably high levels of sickness absence and under-performance by some staff.

'While judges are satisfied with the quality of the reports produced by Cafcass staff, it is a serious matter that an organisation whose role is to look after the interests of vulnerable children in family court proceedings is still not providing a timely service.

'This Committee does not share the Department for Education's confidence that all will be well by 2011.

'The failure to provide an effective service cannot be blamed solely on the rise in public care cases since 2008.

'Top management must demonstrate and exercise strong and vigorous leadership if Cafcass is to meet the challenges it faces, not least the OFSTED judgements that 8 out of 10 of the areas inspected failed their inspections and the relentless rise in open cases which is putting pressure on the family justice system.'

Committee's conclusions

· Cafcass, as an organisation, is not fit-for-purpose.

· With duty allocation needing to reduce quickly and substantially, there is a risk that the reductions could result in the scale of unallocated cases returning to the unacceptable levels seen in summer 2009.

· Cafcass did not see the crisis coming, nor did it have a contingency plan in the event of a significant increase in demand.

· Cafcass took far too long—until October 2008—to put in place an acceptable performance management framework and is still dealing with the legacy of under-performing staff and low morale.

· Sickness absence among frontline staff is unacceptably high and significantly exceeds levels elsewhere in the public sector.

· Judges remain satisfied with the quality of reports to the courts, but caseloads carried by family court advisers have been increasing, which brings new risks to the quality of service provided to the courts and families.

· Low compliance by staff with important requirements has been a persistent problem, and has undermined Cafcass's efforts to improve performance.

· The quality of assessments on care cases by local authority social workers varies. Poor quality assessments place an additional burden on Cafcass as the courts must request a new assessment from Cafcass family court advisers if they cannot rely on the work of local authority social workers.

· It is shocking that Cafcass has not previously collected all the information it needs to manage its workload more effectively.

· Cafcass has taken too long to secure essential changes, and much of the responsibility lies with top management.

Article continues at: http://www.familylawweek.co.uk/site.aspx?i=ed71348.
The Commons Public Account Committee Reports is available at: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpubacc/439/43902.htm.
House of Commons seminar considers child relocation cases
Speakers highlight urgent need for reform
A seminar in the House of Commons, organised by Families Need Fathers and chaired by Dr Samantha Callan of the Centre for Social Justice, considered the need for reform of child relocation cases. The event at which Professor Marilyn Freeman of London Metropolitan University and Ann Thomas, managing partner of the International Family Law Group, spoke also considered the Custody Minefield's reform proposals in their November 2010 report 'Family Law: Relocation and the Case for Reform'.

The seminar was attended by MPs, solicitors and barristers, psychiatrists, representatives from the Ministry of Justice and family charities.

Craig Pickering, Families Need Father's Chief Executive Officer said:
"There is a growing interest in the issue of relocation from the legal community, politicians and academics alike. Allowing children to be too easily removed from a loving parent and wider family needs to end, to reflect parenting in the twenty first century and to help make the law truly in the best interests of the child. Currently there is a review of the family justice system taking place and we need to ensure that this area is not ignored."
The Custody Minefield's report which includes a review of the debate on relocation, developments in 2010 and proposals for reform can be downloaded from the website of The Custody Minefield. Michael Robinson of that organisation said at the seminar:
'The court's current guidance has two main flaws. The first regards the weighting of evidence, in that unsubstantiated opinion over-rides evidence. Judgments in these cases rarely turn on facts, but instead adhere to an out-of-date and a rather patriarchal view of women.

'The second flaw is the lack of consideration granted to societal change in the past 40 years. In 2001 when relocation guidance was last reviewed, counsel for the father was unable to provide evidence that the comparative importance of fathers, and their role in childcare, had changed in the previous 30 years.'
He went on to say:
'In December 2009, a study by the Children's Society found children 40% more likely to suffer mental health problems when separated from a parent. 40%. Study after study has found that children are more likely to experience mental health and behavioural problems and are more likely to have mental health difficulties in adulthood due to separation from a parent in childhood. The Children's Society found there to be a correlation between childhood depression, and the diminishing of parenting time with a father. No doubt the same would be true if children were routinely removed from their mothers. Children now have two significant attachment figures, and separation anxiety and the ensuing psychological problems caused by this should not come as a surprise. Yet the granting of a relocation application subjects a child to this separation 90% of cases.'
He concluded:
'I have heard it argued that these cases are very difficult, and no doubt they are, as one or other of the parents will be disappointed. There is a simple solution, and one devised by Parliament 20 years ago in the Children Act 1989, that the child's welfare should be the court's paramount consideration. More detailed statutory guidance is however required, to ensure that child welfare is considered according to what evidence confirms today, rather than what was believed in the past.

'In all British child welfare issues, and the issue of 'relocation' is no exception, the precautionary principle should be applied. While I welcome suggestions that there be specific longitudinal studies into relocation in the future, these will take years, and there is no reason to ignore the abundant and compelling longitudinal studies which show a risk of psychological, developmental and emotional harm when a child is separated from a parent. The evidence to support there being legal reform, and legal reform now, is clear.

'That evidence, a review of the debate on relocation, and proposals for legal reform are published in our new report 'Family Law: Relocation, and the Need for Reform'. I would welcome your support in assisting these proposals to become new statutory guidance for the judiciary, so children are not exposed to the risks they face today.'
Ann Thomas of iFLG also spoke about the urgent need for reform, given that in practice it is very heavily weighted in favour of the residential parent, invariably the mother, and the importance of finding ways to resolve these disputes without a final court hearing. Her speech can be downloaded from the iFLG website.
Abduction/relocation case

G (Children) [2010] EWCA Civ 1232

Mother’s appeal to the Court of Appeal to reverse order made that the parties’ two children should be returned to Canada after their unlawful abduction to this jurisdiction. Appeal allowed.

Intractable contact dispute/parental alienation case

Re L-W (Children) [2010] EWCA Civ 1253

Court of Appeal allowed father’s appeal against compensation and committal orders. The judge had overstated the father’s obligations under the order for contact and the judge had not considered the possibility of impossibility of performance.


There have been protracted proceedings in relation to contact, in particular in relation to M's contact with his mother. The proceedings have been heard throughout by Judge Caddick and he stated that the litigation "is fairly described as an intractable contact dispute, with an element of parental alienation, and persistent failure to comply."

Orders for contact were made in respect of M to have contact with the mother but contact failed to take place essentially because the child refused to either go to the contact or wanted to immediately return to the father once the contact had started.

The father's obligations under each successive order were to "allow" contact and "make M available" for contact. To "allow" is to concede or to permit; to "make available" is to put at one's disposal or within one's reach. That was the father's obligation; no more and no less. That, however it was held, was not how the judge treated the orders. The Court of Appeal noted that running through all of his judgments is the assumption that the father's obligation was to "make sure" or "ensure" that M went and that contact took place. The father's obligation, according to the judge, was to make sure that he did all that was necessary so that that child would go and to take "whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went". The father may have been under a parental or moral obligation to do these things, but on the wording of the orders he was not, it was held under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve – to "ensure" – that contact actually took place. The Court of Appeal rejected the argument that the father was under a legally enforceable obligation to take such steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place. Moreover, it was held that it is not possible to determine the question of breach by reference to the question of reasonable excuse.

The Court of appeal underlined that committal is – has to be – an essential weapon in the court's armoury in cases such as this and that nothing in their judgment should be seen as a charter for avoiding enforcement of contact orders in whatever is the most appropriate way, including, where appropriate, by means of committal.

Appeals allowed.

Summary by Richard Tambling, barrister, 1 Garden Court

Lord Justice Sedley:
117. I agree both with the analysis set out in the judgment of Munby LJ and with the consequent disposals which he proposes. I take the liberty of adding some remarks of my own because the case seems to me to raise significant issues not only of family law and practice but of law enforcement generally.

118. Precisely because a court order, once made, should not be able to be defied without consequences, it is axiomatic that a court should never make an order which it is not prepared to enforce. The problem which this creates in a jurisdiction whose task is to regulate human and family relations is immense, because – as this case starkly illustrates – it requires the judge at a relatively early stage to form a firm view of the dynamics of a fragmented family.

119. If, as happened here and must happen in a good many cases, the judge legitimately forms the view that it is the father who is obstructing contact by transmitting to the child his hostility towards the mother, the judge may well make a coercive order against the father. From that point the judicial die is cast: subject to accidents, failures of contact will be the father's fault, and punishment will if necessary follow. But this paradigm of fault omits something which may well be, or become, critical – the child's own feelings and attitude. Even if, as Judge Caddick strongly sensed, it was from the father that the boy had picked up not only his view of the mother but the vocabulary in which he was expressing it, by the time committal was on the agenda it was very plainly the boy's own refusal which was impeding contact.

120. The potential consequences are vividly described by Munby LJ. Some are clearer to us than they were to Judge Caddick, but all were in my view predictable. They include placing an intelligent 10-year-old in a position in which he can either keep his father out of prison by grudgingly going to see his mother or acquire a burden of guilt by persisting in his refusal and letting his father go to gaol. In a case in which it was clear that the voice might be the voice of the child but the hand still plainly that of the father, this might even so be necessary; but it is not, and has for some while not been, this case. The premise on which the judge made his initial order has become absorbed into a much more complex and intractable situation which punishing the father not only cannot solve but will exacerbate.

121. There are at least two morals. One is that before deciding that a parent is the author of a child's resistance to contact and so can be made the subject of a coercive order, the court needs also to be sure that the parent, by one acceptable means or another, can still reverse the child's attitude. The other is that even then a court, despite the affront to its dignity, may have to be prepared, if it comes to the point of committal, to accept that the predictive premise on which it initially acted has turned out to be wrong: that, for example, the child has internalised the custodial parent's hostility, so that punishing the parent can no longer produce the intended outcome and may produce its opposite.

122. This last point brings me to something which I venture to say less as a judge than as a parent. The critical attitude which M has acquired or developed towards his mother is not one of simple hostility. He wants her to be the mother he remembers when he was little. There is a real pathos about this in a boy, still only ten or eleven years old, who has had and is still having to live through an acrimonious family rift and realignment. If instead of seeking to restore relations with his mother by letting her see him for a few hours at a time the courts were to abandon the blunt instrument of coercion and were to let time take its course, it seems to me much more likely that M will in his own time find his own way back to the affectionate relationship with his mother which both of them wish for. It may not happen, of course; but if we continue down the present road it will certainly not happen. The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations.

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