New CAFCASS Guidance

The Chief Execs of CAFCASS and CAFCASS CYMRU have issued the snappily titled : GUIDANCE FROM THE CHIEF EXECUTIVES OF CAFCASS AND CAFCASS CYMRU ABOUT CHANGES IN USE OF CAFCASS PROFESSIONAL TIME TO BRING MOST BENEFIT TO CHILDREN WITHIN THE RESOURCES AVAILABLE (AKA We’re doing our best, alright?*)

*I added that bit.

It was published here on 2 Jun via Family Law (Jordans). Which is odd because it appears to be a consultation, which closed on 1 Jun. Perhaps it has been internally circulated before its public outing on the Jordans website, who knows. I guess external stakeholders views weren’t wanted.

So, what does it say? Well, I confess I don’t understand a word of it. But it makes me a little twitchy. I’ve had to put some soothing flowers at the top of the post to calm me down…

I do get that it is a document prompted by the combination of limited resources and an ever-climbing workload (clue in title). We’ve seen such documents before from CAFCASS. Remember the time when CAFCASS ran out of Guardians, the interim guidance to deal with the temporary crisis in 2011? The menu of options for s7 “lite”? Remember “proportionate working” in the operating framework in 2014? See here for posts on Pink Tape about CAFCASS over the years if that is all a distant hazy memory to you, and this post in particular which links to the interim guidance and the menus.

It is an attempt to answer the question of how CAFCASS can do more with less. I sympathise with them. But this document is really worrying, not least for its complete lack of clarity (is it a draft, a consultation?), and ambiguity of scope (does it apply to pilot areas mentioned or everywhere? when does it come into effect?). And does it supercede the operating framework?

For a document that starts by saying the emphasis on flexibility it is strikingly restrictive in its interpretation of how CAFCASS Resource should be used.

It seems to say that CAFCASS officers should pretty much never be at court unless its a FHDRA or they are required for cross examination. Here is the actual wording :

…we think that social workers should attend court either to give evidence, when their evidence is critical to decision-making, or to hear evidence that is essential for them to hear if they are to be able to carry out their own work and to make effective recommendations to courts.

We do not expect social workers to be sitting through lengthy hearings of any description, unless there are exceptional reasons for so doing. We ask you to pay special attention to this point.

In public law cases, the child’s legal solicitor or barrister will still be able to attend every hearing, having taken instructions from the guardian who will remain accessible by phone to the solicitor or barrister in the usual way.

I’m not sure that this is supportive of guardians being present at all hearings in care cases, which in my view they should be – unless specifically excused. Although pa 6.5 PD16A requires :

The children’s guardian or the solicitor appointed under section 41(3) of the 1989 Act or in accordance with paragraph 6.2(a) must attend all directions hearings unless the court directs otherwise.

it is usual for a guardian to specifically seek permission not to attend even if their solicitor is present. For good reason. It is already a known phenomenon for conscientious guardians to furtively suggest that the court might wish to order them to attend so that they may be present at a hearing or to hear the evidence of the parents where they consider it necessary – in order that they can do so without being reprimanded. This can only get worse.

In private law we are told of the invention of a new form of s7 lite. Although I think 7 Zero would have been a better rebrand, they’ve gone with the rather less obvious “Child Impact Analysis”. This comes with its own template containing 5 generic headings and no reference to the welfare checklist. The irony of course is that if the analysis is not set out with reference to the law, a party is far more likely to require the officer to come to court to give evidence in order to explain their analysis. So possibly not such a genius way to free up the time of a CAFCASS Officer. Unless the success of this wheeze is predicated on the assumption a LiP won’t know to ask for the officer to attend for cross examination.

The guidance says :

The work of Cafcass and Cafcass Cymru after the first hearing [in private law] will be streamlined and re-focussed, so this is the area of work we propose should be subject to most change.

Cafcass and Cafcass Cymru plan to deliver more defined interventions in cases going beyond the first hearing than the traditional section 7 report and they intend to pilot new child impact reports for 3-6 months in Essex, York and North Yorkshire and South West Wales.

The threshold for asking Cafcass/Cafcass Cymru to carry out work beyond the first hearing should be a concern about significant child impact, not the fact that the parental dispute is continuing in court.

Whether this means there will be any change outside of the pilot areas is anyone’s guess. And quite what the last sentence actually MEANS is beyond me. What is a “significant child impact” and exactly which cases don’t involve one?

There is talk of “brief interventions” and “brief child-focussed casework“. I think this means CAFCASS will go back to doing some actual hands on social working – not a lot, but a little (as Paul Daniels would have said). The stuff that used to be done by the FSWs that were made redundant some years ago. The stuff that CAFCASS have been telling us isn’t their job for some years now (oh no, we just write reports). I welcome this, if it means what I think it means (working with instead of reporting on families – facilitating reintroductions, life story etc).

There is also mention of “local arrangements” and “hotline arrangements” (which apparently exist in Wales) so that CAFCASS can “[act] in a social work advisor role to court, as the social work equivalent of legal advisors.” Nope, me neither. Does this mean they’ll rock up and make a recommendation on the hoof? By phone? With or without the parties present? With or without them being able to ask questions (on the hoof) (without a lawyer)? *twitch…twitch*

In public law we’re likely it seems to get one rather than two analyses from a guardian. In truth this is beginning to be the norm anyway, but there is a significant benefit in many cases in an early analysis for which a position statement is just not a substitute. Such analyses can materially affect the whole direction of travel of a care case (including whether or not there is an interim removal). Coupled with the fact that a Guardian is now unlikely I think to even be at court at a CMH, this is worrying indeed. So much happens at those early hearings, so much information is elicited whilst at court – a Guardian should be AT court liaising with social workers and asking questions and rolling up their sleeves, not receiving the potted highlights from their solicitor some hours later.

Anyway, there you go. That’s my initial impact analysis – there will be a significant impact, I just don’t know quite what it will be. Things are changing. Or possibly just coming full circle…. *helpful face*

I sympathise with CAFCASS, like any other public service struggling to manage with inadequate funding but I do wish they’d drop the jargon and speak English.

Watch this space.

And send me explanations if it makes sense to you…

Dance of the synapses…

Brrr but it was a mighty cold one this morning [yesterday morning now – I got tied up!]. A morning of luscious oversleeping under warm duvets and a crunchy frosty frogmarch into school just before the 8.50 kettling bell. And then a long, hot, steamy shower to defrost my face and brain.

Radio 4 have been running various things about boredom and the creative process recently. Eddie Mair on PM played 2 minutes of what h considered to be “boring” yesterday to see if our synapses got jigging. However, this was clearly not a pop-experiment meant for lawyers. Because Mair’s 2 minutes of “boring” was someone reading the Ts & Cs for voting in Strictly Come Dancing – a fascinating piece of weird and imperfect legal drafting, which led me off onto a reverie about how on earth it could ever be enforced, before realising of course it is an exercise in box-ticking futility. As a boring person once said – only boring people get bored.

img_5894Anyway, back to that thawing shower. It got my synapses in a right tizz, firing off in all directions, joining dots here there and thither. And this post is the somewhat chaotic result. Having mentally formulated the gist I rushed out of the shower, hair still wet, to snap a picture of the side of my car before the evidence disappeared. They might be involved in more accidents (says my dad), but as I discovered this morning the beauty of a black car is the creeping frost-tinsel web that encrusts your motor on mornings like this (Made even more lovely by the swooshing finger doodles drawn by my gloved children as they raced to car at 8.43am). Like a frozen map of all those synapses, right?

So I’m pondering the latest depressing news as I apply detangler to my hair – but this morning it all seemed connected with stuff that is closer to home. Brexit, Trump, the far right in Europe. The Family Courts. Adoption Targets. Un-disentangleable…

Europe is an imperfect compromise. Some of us think (thought?) the pros outweigh the cons (a bit less than half), some think not (a bit more than half). Whoever is right, those of us who thought Brexit would never happen were not listening sufficiently carefully, or not engaging with the grumbling from those who were unhappy about the way things were. And – boom! I give you : Brexit. And – boom! The yanks gave us Trump…

Such is the way of things in Family Court disputes too. When people are pressed too hard into compromise that they can’t really live with (in court or in mediation) – it can break down further down the road, sometimes explosively. Although I don’t happen to agree with him about no fault divorce, Richard Balchin has a point about the need to build a cathartic release valve into any system dealing with wounded, anngry people – and the need to acknowledge anger or a sense of profound unfairness. We pretend we can fudge deep anger out of existence by telling them they ought to suppress their feelings and behave sensibly, pragmatically – and by intentionally or inadvertently pressurising people into compromise – it is not always possible and not always wise. Sometimes we’re just kicking the can.

screen-shot-2016-12-01-at-10-37-48I’m not sure we’re very good at listening to the grumbles about the family courts anymore than we really HEARD the pre-Brexit grumbles. People talk of not being listened to. It is too easy to say “Well, those are just the people who didn’t “win” or get the outcome they wanted – there will always be some of those”. There will, but we need to take care that this fact does not deafen us to messages we need to hear about how our system is not working. And how people are not prepared to buy into it.

It isn’t just individual cases. There are grumbles – loud ones – about the system itself. That victims of domestic violence aren’t listened to, that unsafe contact is permitted. That dads are discriminated against and marginalised. That social workers lie, snatch babies for targets and bonuses. That everything is corrupt.

One doesn’t have to agree with Brexiteers that they were right about Europe, and one doesn’t have to agree with Trump supporters that he has a fantastic sexy hairstyle, to see that it might have been a good idea if we’d engaged earlier with the grumbles.

So. Take adoption targets. The Transparency Project have tried to engage – we’ve listened to the grumbles and questions and tried to help find an answer. We haven’t got there yet. See : English councils confirm they set targets for the number of children to be adopted. But what response have we had? We’ve had a lot of people TELLING US that adoption targets don’t operate in the way the grumblers fear or suggest. And a few people offering anecdotal evidence that “I’ve not done x” or “I’ve not seen x done”. And I don’t doubt the authenticity of those accounts – but they fundamentally don’t answer the question or engage with the grumbling. See here on Community Care (comments) : My child was nearly adopted – here’s why adoption targets are wrong.

So. Who is going to step up and deal with this issue?
img_5896Because there is a groundswell. Those who look can see it. Those who choose not to carry blithely on telling themselves that this is the lunatic fringe, a few conspiracy theorists. They are wrong. These people are our clients, our family, our friends. These people are the parents of vulnerable children – who might, just might, be capable of being helped to be better parents – but who might shut out professionals who try to offer that help because they believe their child will be snatched if they open the door.

bolchAnd for the same reasons that people elected Trump, and for the same reasons that people voted in the confident but false belief the referendum was binding rather than merely advisory and that Brexit would somehow magically happen in a flash like the ripping of a plaster – people will start acting (do act) on the basis of the information that IS out there about adoption targets and our so-called evil corrupt secretive system of child snatching. Information like the documentary explored in this post : England’s Stolen Children? Plus ca change, plus c’est le meme chose. Because we’ve not bothered to listen or to give them anything better to rely on (You only have to look at this coverage by the BBC of Pizzagate for an illustration of how fast-spreading and powerful these narratives are – and how difficult it is to bring people back once they have leapt down the rabbit hole).

And they will start acting on this information through their engagement with lawyers, social workers, judges, their children. Don’t our professional and political leaders owe them a duty to give them some answers? We need to take a hot shower, join the dots and wake up.

A plea for thoughtfulness…

Two pleas for thoughtfulness actually.

Annie of Surviving Safeguarding spoke at the ALC Conference this week. She was like a female, geordie version of John Bishop, only with much darker material. And more swearing. She had a fan queue at the end. There was one thing I wanted to draw out from what she said (there was so much to take from it, but this one thing happened to resonate with my own recent experience) – it was her plea for professionals to think about how their chummy chats and giggles in corners look and feel to the client who is at court, bewildered and fearful of their children being taken – to the client whose only ally is gassing with the enemy”. We all do it. I do it sometimes, although I try to be very mindful of my client’s needs and perceptions. And, as Annie recognised, it is a natural and necessary part of our job – we have to communicate and we have to have functional working relationships with colleagues in order to do our job and achieve results for our clients – and black humour is something we need to get by in a stressful and depressing working environment. An opponent who trusts you is more likely to see your request as reasonable and respond to it, than an opponent who has experienced you as a miserable old cow day in day out*.

But the point is it has a really big impact on how a parent feels and on how they experience what is going on, what is being done to their family.

A client recently raised this very issue with me, having noted the guardian and her lawyer repeatedly spending time in the same conference room as the social worker and her lawyer. He was right to pick up on it, as all of us acknowledged. We were able to talk it through collectively with him and to reassure him. This was possible because the guardian in question was a fiercely independent guardian who is quite happy to give the local authority “what for” and who, I reminded the client, had done just that earlier on in the case, pooh poohing their ridiculous care plan. But actually, it is better not to provoke that anxiety about what’s going on because not all clients are able to articulate that anxiety or to respond to reassurance about it. And in some cases there IS too much cosiness between one team and another and it IS unhealthy. And from the outside both scenarios look and feel exactly the same.

As lawyers we do need to go and hole up with other lawyers to discuss and negotiate and draft, coming back to base to take instructions and inform our clients. But an explanation of what is happening and why, and regular check-ins with clients go a long way. Likewise, going into court on a “counsel only basis” is something I rarely do these days – and where I do I explicitly explain to the client why (usually : just to ask for time, because the judge has specifically requested it) and I often ask the judge to stop if I feel issues are being discussed that my client will want or need to be involved in.

So that is my first plea for thoughtfulness. To all lawyers involved in care proceedings. To social workers and to guardians. Please help parents to trust in the system and in your independence and professionalism. Don’t overdo the chummy thing or the private chat thing.

Second plea for thoughtfulness?

The Transparency Project published the results of a study on adoption targets this week. You can read about that on The Transparency Project blog or on Community Care. It’s tricky stuff. We don’t have all the answers. The study doesn’t lay to rest all those theories about babies being taken to meet targets or secure bonuses – but nor is it proof that those theories are right. It’s complicated innit? Some of the reactions to the study have been (predictably) to say that the study is “proof” of the distorting effect of adoption targets. It isn’t. This study REALLY requires reading beyond the headline. It IS proof that it’s a complicated topic and that more work is needed – and that’s all really. Thoughtful responses to the issues raised by the study are encouraged. How do we get more clarity? How do we reassure parents? How do we make sure that we aren’t inadvertently creating the system that the critics complain of, one that has systemic distortions in it?

 

*yes, I know I’m a miserable old cow much of the time. Moo to you…