Child Care Solicitors

Cafcass (Children and Family Court Advisory Support Service) was set up on 1st April 2001 to bring together the family court services previously provided by a number of different organisations. CAFCASS is a non-departmental public body which is accountable to the Secretary of State for Children, Schools and Families, who at the present time is Michael Gove MP.

The role of Cafcass is to:

• safeguard and promote the welfare of children
• give advice to the family courts
• make provision for children to be represented
• provide information, advice and support to children and their families

Cafcass assist the Court in a number of different types of cases, however, this article deals with cases in which Cafcass are asked to assist when social services have became involved and children may be removed from their parents’ care for their safety. These cases are referred to as public law proceedings.

Cafcass consists of professionally qualified social workers who are known as Family Court Advisors. They are completely independent of all the parties and the Court unless appointed to represent a child’s interests separately within the proceedings.

In public law proceedings Family Court Advisors act as Children’s Guardians and have an important role within the proceedings. Upon the issuing of an application for a care or supervision order, which is usually made by the Local Authority, the Court will notify Cafcass, who is under a duty to allocate a Family Court Advisor to the case. The Court will then appoint this person as the Children’s Guardian. This has to be done within 3 days from the date of issue of the application and before the First Hearing. The reason why a Children’s Guardian is appointed is due to the fact that when an application for a care or supervision order is made the child/ren concerned are automatically made a party to these proceedings and will have the same status to that of their parents. A Children Panel Solicitor will also be appointed by the Court to act as the child/ren’s solicitor and it will be the duty of the Children’s Guardian to safeguard and promote the welfare/interest of the child/ren’s and provide instructions to the appointed solicitor unless a child is old enough to instruct the appointed solicitor directly.

Since Cafcass was set up it has experienced a consistent rise in the request for Family Court Advisors to assist within Court proceedings. This increase in demand has been greatest in relation to public law proceedings and in March 2010 Cafcass recorded the highest request for Children’s Guardians in a single month (832 cases) since they began collecting this data. The previous recorded high was in June 2009 with 789 cases. Comparing the figures for 2009-2010 to those of the previous year, there was a 34% (2188 cases) increase in demand for Children’s Guardians. In March 2010 Cafcass staff were working on 11,509 care cases, a 26% increase on the 9,128 cases they were working on in July 2009.

Cafcass attributed some of this rapid rise in the level of public law applications being made following reviews undertaken by Local Authorities after the tragic case of Baby P came to light. Unfortunately Cafcass has not been able to keep up with this increase in demand and this has resulted in a large backlog in Children’s Guardian being allocated within the 3 day timescale or in fact for a number of months. In September 2009 there were 915 unallocated cases and it was common place to wait six months in the Greater London Service Area before a Children’s Guardian was allocated. Although current figures are not available Anthony Douglas, Cafcass Chief Executive has said “There is no doubt that the sustained increase in care cases has placed all of us working in the care system under pressure. However, where agencies are working together collaboratively, as outlined in the renewed President’s Interim Guidance, we have found that backlogs in cases have fallen and we are providing a more timely service to vulnerable children”.

So what is the effect of the delay in Family Court Advisors being allocated by Cafcass? Well the delays have been most keenly felt in the Greater London Service Area within public law proceedings. The Cafcass Greater London Service Area provides services to children and families across 33 Local Authority areas and it has been said that a service charged with looking after the interests of children in family proceedings is in ‘meltdown’ and has been called ‘inadequate’ by Ofsted who recently carried out an inspection commencing on 7th December 2009. Ofsted felt that whilst Cafcass ‘has taken some recent creative steps to tackle delay, it is too early for these to show sufficient impact. This means that children and families are still waiting too long to receive a service from Cafcass’.

The National Union of Probation Officer (Napo) has blamed the bureaucratic demands on Cafcass which has led to constant monitoring and inspection, which diverts then from work with families and children. Whilst Cafcass has confirmed that they cannot afford to allocate cases to self-employed guardians who could usefully assist in reducing the backlog.

It is understood that in relation to public law proceedings, one of the way Cafcass has been trying to reduce the backlog in unallocated cases is to allocate Children’s Guardians who have no capacity to undertake the work. However, this does not solve the problem as the Children’s Guardian is unable, due to their excessive workload, to undertake the important work they do. Therefore although it may no longer be necessary to wait up to six months for a Children’s Guardian to be allocated, in some cases it could be said that Children’s Guardians are only involved in proceedings in name only. Due to the pressures placed on Family Court Advisors it has been reported that they feel unappreciated and overworked.

The negative effects of all this delay are being felt by the Courts, the legal profession and most importantly the children and families themselves. Within public law proceedings where a Children’s Guardian has not been appointed, a child’s solicitor is often expected to do the work of both the Children’s Guardian and solicitor which is not appropriate given the particular expertise a Children’s Guardian has. Therefore children, in particular older children, have no one independent with whom to speak about their wishes and feelings. As a result of this, Courts often have to make important decisions about children and families without the independent advice of a Children’s Guardian being available. Recent case law has indicated that it is procedurally inappropriate for the Court to make a final order without the assistance of a Children’s Guardian therefore creating unnecessary delay in proceedings being concluded.

The delay in public cases coming to a satisfactory conclusion goes against one of the main principles underpinning the law relating to children, this being that any delay is likely to prejudice the welfare of the child. Therefore there needs to be fundamental changes in the way in which family cases and all those involved, to include Cafcass, are funded and managed and these changes need to come about quickly in order to protect the most vulnerable members of our society, children.