Appoint guardians earlier, please!

Solicitors at Miles & Partners acting in cases relating to children are asking judges to put pressure on CAFCASS to appoint Childrens Guardians earlier. The current shortage of Guardians in care cases is causing serious concern amongst lawyers who represent the children who are the subject of care proceedings. Lucy Taylor looks at the reasons why, and the vital role of the Guardian in care proceedings.

Guardians

In care proceedings, adoption cases and certain private law children cases, a Children’s Guardian is appointed by the court to give an independent view of what has been happening and what should happen in the child’s life, and put forward the child’s wishes and feelings. Guardians are independent of the Local Authority and the parents and act as the eyes and ears of the judge.

A Guardian is usually a qualified social worker with considerable experience of working with children and families. Guardians are mainly employed by the Children and Families Court Advisory and Support Service (CAFCASS).

At the outset of the case the court will also appoint a solicitor for the child, whose role it is to represent the child, through the Guardian. Only solicitors who have considerable experience of child care cases and who are on the specialist Children Panel of the Law Society are appointed by the court for this role. Three members of Miles & Partners LLP family team are on this panel, and are regularly appointed by the court to act for children in these cases.

It is the Guardian’s function to safeguard the interests of the child. He/she will meet with the child, the family, and any other relevant parties, and evaluate the evidence before the court. The Guardian will produce a report on their findings and their recommendations for the child’s future.

Evidently, the role of a Children’s Guardian is an important one, so recent news that CAFCASS is in crisis and that cases are being left without Guardians is very concerning.

The crisis

According to solicitors’ journal the Law Society Gazette, delays of up to 6 months before allocation of a Guardian have been reported and the NAPO (The Trade Union and Professional Association for Family Court and Probation Staff) report, which was published in November, reported that there were 916 care cases with no Guardian appointed..

It is the experience of solicitors at Miles & Partners that the delays are indeed as severe as reported and cases are often far down the line by the time a Guardian is appointed which deprives the child of the benefit of having a Guardian.  There have even been cases which have ended before a Guardian has been appointed!

The solicitor for the child or children should be appointed at the same time as the Guardian and they should work together on the case.  In practice the solicitor often has to conduct the case for many weeks without a Guardian appointed which places them in the position of having to conduct the case effectively without instructions.

Not only are many cases left without a Guardian allocated, but those which are allocated are often to practitioners with excessive caseloads. In the briefing paper by NAPO published in November 2009, it was reported that many caseloads had risen from 12 to 20 per worker.

CAFCASS reported on their website on 21st December 2009 that unallocated cases were down from 916 to 511, but this can be explained by the overloading of practitioners with cases following the initial reports of backlogs within the service.

This means that, following delays in allocation of a Guardian, there are further delays of 20 weeks or more in producing court reports, according to the NAPO press release of Feb 2010.

This also means that Guardians are so overworked that they simply cannot act in the best interests of the children that they are intended to safeguard.

OFSTED, the Office for Standards in Education, Children’s Services and Skills, have investigated CAFCASS, and have given unfavourable reports. These investigations by OFSTED have in fact compounded the issue, with CAFCASS workers using time ineffectively to ensure they get good reports.

Why have these problems come about?

The difficulties with allocation and excessive workloads of Guardians are a consequence of a sharp increase in the number of care proceedings being brought. According to a report by NAPO, which represents the interests of Guardians, the number of care proceedings has risen by 21% in the last year.

This upsurge in care cases can be attributed to the highly publicised child protection failures in the case of Peter Connolly, known as Baby P.

Some of the people and organisations involved in care proceedings say the problem has been created or exacerbated by an increase in bureaucracy in CAFCASS resulting in more layers of expensive management , endless form filling and cases being judged on file keeping rather than actual skilled work with children and clear analysis. This assertion is denied by CAFCASS management.

What’s being done by CAFCASS?

CAFCASS have actually said in a press release dated 12 February that NAPO’s claims were ‘not based on fact’. However so far, the steps taken by CAFCASS to address the problems listed above have resulted in little benefit. Agency staff have been employed to deal with the backlog of work, but this is extremely expensive; £2,000-3,000 per worker per week, according to NAPO. Additionally, staff have been advised to make contact with families over the phone, rather than face to face, and to avoid attending meetings to save time and resources. These measures are not consistent with accepted best practice and it is generally thought that they will prevent the practitioners from acting in the best interests of children.

CAFCASS have introduced a duty Guardian scheme, which means that a CAFCASS officer will check in the case and deal with it at court, but they are unable to follow the case through by doing visits or providing reports.

What does this mean for clients?

Clients can rest assured that the solicitors at Miles & Partners acting in cases relating to children are asking judges to put pressure on CAFCASS to appoint Guardians earlier and, where this is not possible, instructing independent Social Workers to give the court an impartial view of the needs and wishes of the child.

Opposition by legal practitioners

Child lawyers have spoken out about the impact of the Guardian shortage, with Christina Blacklaws, the Child Care representative on the Law Society Council being particularly vocal.

In an article for the Law Society Gazette in September 2009, she called for reform of CAFCASS, and the family court system in general, because of bureaucracy and lack of government spending.

David Jockelson, consultant solicitor at Miles & Partners with long experience of care cases, says that families and children are being let down badly by the present situation.

“This has been described as a crisis and that is absolutely true. A few years ago we had a system which was much admired throughout the world. Many excellent Guardians have left because of disillusion with CAFCASS and the management style. Many excellent Guardians remain but they are hugely overloaded and are aware that they cannot give the sort of service that children and families need and that the Court expects.

Hugely important decisions are being made about children by the court. I have great respect for the judges who deal with these cases, but they themselves acknowledge that they are having to make decisions without the full information and analysis that they have previously been given by Guardians.”

Both David and his fellow Children Panel member and Miles & Partners colleague Zoe Fleetwood have cases nearing conclusion with no Guardian yet allocated. Zoe says “It is without doubt a significant detriment to the children and parents involved in these cases.”

Lucy McCallion is currently a Legal Assistant in the family department of Miles & Partners. She will start her training contract at M&P in September 2010, and has a particular interest in public law children cases.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.