Ooops. Here is a post which I drafted some weeks ago and apparently failed to publish, in the haze of maternity leave. It’s still topical, so I’ll post it here. The President’s Interim Guidance has indeed since been extended as foretold by this post.

.

News that the President’s Interim Guidance in Respect of CAFCASS is to be extended by a further six months (to c Oct 2010) fills me with dismay. And I’m not the only one. For all the headlines whizzing around about the reduction in the CAFCASS ‘unallocated’ backlog, the fact remains that the backlog is still unacceptably high and CAFCASS Officers and their Unions are complaining about the quality of service they are able to provide on cases that are receiving services under the duty scheme. The whole idea of the Interim Guidance was, I thought, that by the end of the interim period (end Mar 2010) the backlog would be cleared. Apparently CAFCASS have been unsuccessful in achieving this goal. I don’t think the answer is to give them a bit longer to sort out the problem, particularly since the rise in workload appears to be more sustained than had originally been anticipated.

.

Let me play devil’s advocate here. One perspective on the Guidance is that it lets CAFCASS off the hook, and more particularly takes the pressure off CAFCASS to organise itself effectively and (most crucially) off of the DCSF to fund CAFCASS properly to do what Parliament has decided it should do. The judiciary are empowered by (for example) s7 and s 41 Children Act 1989 to order CAFCASS to provide services to a child or family (eg to appoint a Guardian or complete a report), and yet the effect of the Interim Guidance has been to suspend this and other sections of the Act rather than requiring CAFCASS to fulfill its statutory obligations by way of court order. In essence the judicial approach to ordering CAFCASS to fulfill its statutory duties is ‘What’s the point? Any request I make will be ignored’. But for me that’s precisely the point of a court order – it’s a requirement not a request. And such a counsel of despair is not traditionally the approach adopted by the judiciary.

.

Even before the implementation of the Guidance last year this was often the situation one was faced with on the ground. I sometimes had a surreal sense that the overriding concern was not to upset or cause offence to CAFCASS by asking them to simply do their job, and have wondered whether I am missing something when a statutory body issues a standard form written refusal to comply with a court order is met with apparent impotence rather than any attempt to enforce or secure compliance. This is not the traditional approach to contempt of court orders.

.

It frustrates me that by taking the pragmatic approach the courts are abdicating their responsibilities as operators of the family law system as approved by Parliament, and are removing any leverage CAFCASS might have had to secure the additional funding that they require in order to do the job Parliament has given them. And clearly the groundwork is being laid for quite fundamental and permanent changes to the representation of children, for example by way of the abolition of s41, as borne out by the abortive attempts to do just that some months ago. In trying not to be too hard on CAFCASS in the short term I don’t think we’re doing it any favours in the long run. I’d guess that most CAFCASS Officers will not thank the President if the long term outcome of all of this is to abolish the allocation of guardians in favour of a permanent duty system. And I doubt that many in the system would see this as progress.

.

Whilst I can see that nobody in this mess wants to be responsible for forcing the system into deeper crisis than it is already in, particularly where individual children and families may bear the ill effects of failures in that system, I wonder how the current approach is going to serve the interests of children and families in the long run. I think it is strategically short sighted, has a tendency to erode respect for the judicial element of the system, and shifts the focus of our attention onto the so-called ‘unprecedented’ increase in demand for services rather than the chronic lack of resources which is going unresolved. And it tends to obscure the ministerial and governmental machinations that are quite obviously going on in the background – this is a crisis of funding and the impetus for reform is clearly cost driven. This is about more than the so-called ‘Baby P effect’ and about more than the perception that the courts hands are tied by some need to avoid being seen to ‘blame’ CAFCASS for the systemic failures.

.

Perhaps it might be suggested that the approach taken by the President is pragmatic rather than political. For me the only apolitical line to take would be to say that the judiciary will apply the law and will exercise its powers as set out in the Children Act 1989 (and to leave the question of the proper funding of CAFCASS to CAFCASS and the DCSF) NOT to modify the way the system operates without sanction of Parliament by way of ‘interim’ PD. That’s called rewriting the law and it’s the job of politicians.

.

It’s very probably not the done thing for a member of the family bar to disagree with the President of the Family Division, but look – I’m open to the very real possibility that it’s all a LOT more complicated at the top than I can imagine from my perspective on the ground. And I’m open to other points of view. But I do think it’s important that someone puts forward an alternative perspective to the official line – I’ve really compressed my quite malleable views on this issue into a rather blunt criticism of the Presidential line in order to highlight the issues. And whilst no doubt many will disagree with me I know many colleagues who also have doubts about the trajectory we are on.