FCWS Reform Proposals

Families Need Fathers

Response to the Government Consultation Paper

Support Services in Family Proceedings

Future Organisation of Court Welfare Services

November 1998

 

Contents

 

1. Summary

1. FNF strongly supports the Government's recognition of the need for a review of the Support Services which are utilised in Family Proceedings.

2. FNF has robustly lobbied in recent years for this type of review and welcomes the opportunity to respond to the Consultation Paper (CP) entitled Support Services in Family Proceedings - Future Organisation of Court Welfare Services.

3. The CP does give a positive message and presents a sensible framework from which the future organisation of the Court Welfare Service can be determined.

4. FNF believes, however, that the fundamental assumptions of the review and false premises on which the CP has been based need to be addressed.

5. The need for the re-organisation appears predominantly to be driven by the Government's programme of Comprehensive Spending Reviews and not from any genuine understanding and realisation that the current services are failing to deliver adequate services. If the above is true then any future re-organisation is doomed to fail from the outset.

6. Any new unified service will require a different approach than that indicated in this CP, and a comprehensive review of resources. Therefore to respond to this CP it has been necessary for FNF to:

i) set out the shortcomings and other views in our analysis of the CP (see Section 2).

ii) deal with relevant omissions from the CP (see Section 3).

iii) respond to the Government's questions asked in the CP, so that our responses to the views sought in the CP are put into context (see Section 4).

7. Any new service must provide a proper system of relevant staff training. This must include a knowledge of family functioning and dynamics, child development, and law. Satisfactory completion of a proper training programme must be mandatory for all court welfare officers and caseworkers before they are introduced to family work, with ongoing assessment and monitoring to ensure that appropriate child-centred values are maintained.

8. FNF’s response to this CP is almost exclusively reserved for Support Services in regard to Private Law applications under both The Children Act 1989 (CA) and The Family Law Act 1996 (FLA). Nevertheless we accept and agree that both Private Law and Public Law proceedings will benefit from a unified support service, so our views and recommendations should be seen in that light.

9. FNF believes that it is important to remember that the support services to be reviewed should be focused on our children’s welfare and for their benefit, with parents and others with parental responsibility being assisted to achieve the best for our children.

10. A major criticism of the way the review is currently drafted is that it appears to be mostly concerned with remodelling and the administration of the new unified service, stating that ‘the high regard in which the current services are held is emphasised’. This presumption is wrong and dealt with in our analysis of the CP.

11. The aforementioned presumption is exemplified by the narrow selection of organisations invited to partake in the review, and the consequent inward focus of the CP in its current form.

12. FNF believes that it is to be regretted that the ministerial intention stated in the preface of the CP was not heeded, namely ‘that the wishes of users of the service should be involved’. This must surely have meant representation from the general public to assist in drafting the CP, not just the response to a Government paper. FNF believes that an opportunity has been lost and that this has resulted in a CP not focused on what society actually needs from a new unified service.

13. Nevertheless, FNF believes that if the views of individuals and independent organisations are included from this point onwards, coupled with proper representation and participation by the general public in subsequent stages of the process, then a successful outcome may be possible.

14. Although FNF is critical of the assumptions and direction of the CP, we believe that our overall response is positive not only regarding the need to change and develop new support services, but also in our positive and constructive proposals for change.

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2. Analysis of Consultation Paper

15. Chapter 1 (Introduction) of the CP sets out the scope of the document and it is clear from this first chapter that there are a number of shortcomings which need to be addressed and highlighted before FNF can set out its response.

16. As stated above FNF is primarily concerned with Private Law proceedings, so much of our attention in this response concerns the Family Court Welfare Service (FCWS) and its equivalent in the new unified service.

 

The Government Review (Points 1.4 - 1.5)

17. It is clearly stated (1.4) that the initiative for this review of the FCWS, GALRO & OS came from The Comprehensive Spending Review in Autumn 1997, and so was finance driven rather than brought about by an understanding of the need to review and change these services.

18. The Government (1.5) ‘decided that further detailed work involving practitioners and other users of the services should be undertaken to form the basis for public consultation’. Those organisations and individuals that were invited are essentially practitioners involved in providing the services under review, and legal/judicial practitioners who work very closely with the services.

19. Organisations who represent the actual users of the service were omitted at this vital early stage. Independent organisations (non public service) and charities such as FNF would have provided a much needed balance and been able to properly reflect how the services are actually perceived and regarded by the general public.

20. Undoubtedly, if these other organisations had been involved, many of the real issues would have been incorporated in the CP. We are confident that our views (and others from the general public) will show that a more focused and further review is necessary. The composition of a working group to review the responses to the CP must include a fair representation of practitioners, institutional users of the services, and various different organisations who represent the children and parents who have need of these services.

21. The terms of reference imply that improvements in the current arrangements will be achieved through the creation of a new unified service. We believe that improvements will not be secured solely by this means. Other reforms are also required.

 

Child Centred Values (Points 1.6 - 1.8)

22. A major criticism (1.6) of the CP must be the view stated that 'the current services are highly regarded by the courts and many other agencies with whom they have contact' and that their 'professionalism is recognised and valued'. If the reform procedure starts from the above premise it will not succeed.

23. We are particularly concerned about the FCWS and the Official Solicitor (OS), which members of FNF and many other people who have been obliged to use these two services hold in low esteem. Court Welfare Officers (CWOs) cannot at present be regarded as professional in the real sense. The required training contains little of relevance, there are no adequately designed qualifications, and officers are allowed to start work without adequate training. The standards which are set are largely concerned with administrative matters, not quality of evaluations, and there is no adequate monitoring or evaluation of the quality of reports and proposals for children.

24. Prior to the review announcement, FNF formally raised its concerns in December 1997, and we feel it worthwhile to remind the Government of those concerns because they are just as relevant today (see Appendix A - Letter to Minister of State).

25. The source quoted, HM Inspectorate of Probation Family Court Welfare Work - Report of a Thematic Inspection (1997) (HMIP) in the CP, this being the most recent government survey on the FCWS is very revealing. Contrary to the impression given in the CP that the FCWS is a well respected and professional organisation it shows the opposite. It would seem clear that the working group for this CP did not read this report at all or have just relied on very selective positive comments. At this stage it is worth highlighting a few of the findings in the HMIP, but anyone taking an active part in this future review process should read the full report.

26. In the HMIP Foreword: 'it is disappointing therefore that a number of the findings of this inspection are similar to those of the earlier inspection and that it has been necessary to reinforce some of the original recommendations'. This refers to recommendations made by HMIP in 1990. The inspectorate also anticipated that the advent of the CA and the National Standards would assist the FCWS to develop better practices, but six years later the recommendations had to be repeated.

27. The HMIP Foreword does refer to the high esteem of the service by judges and magistrates. This is a perfectly understandable response from the judiciary who heavily rely on an ‘independent’ report, especially as the practice of requesting a FCWS report is increasing due to the 'no order' principle of the CA. It would not be in the judiciary's interest to ‘bite the hand that feeds it’. This is exemplified by judicial comments such as 'None could recall reading an unsatisfactory report prepared by their local probation services, although they were critical of some of the reports prepared by neighbouring probation services' (p60, 4.66). FNF has evidence of judicial criticism of the FCWS. It seems to be praise from this quarter which the CP relies up on to justify its 'highly regarded' view of the current FCWS.

28. The report confirms that the FCWS has 'received only limited attention in the Home Office three year plans since they were first issued' (p99, 7.2).

29. The report disappointingly confirms that more attention is paid to achieving reports produced to National Standard guidelines and in a 10 week time scale than a qualitative analysis of the FCWS reports. None of the 10 areas inspected managed the Home Office target of 95% completed reports in 10 weeks.

30. The report also disappointingly shows that the FCWS is a reactive service with neither the resources or inclination to provide additional services to those families who require assistance. This is confirmed in the September 1998 Probation Journal by Brian Cantwell (former Senior Court Welfare Service Officer), who writes 'The Children Act 1989 established the Family Assistance order. To offer social work help to families stuck in conflict....Effectively it was strangled at birth by the Home Office’s failure to include the work in its cash limits formula'.

31. The FCWS does not monitor in any way how its reports are received by its clients (the general public) or have any follow up procedure to ascertain whether the report recommendations have the desired effect for the children whose best interests are supposed to be safeguarded.

32. Finally, a better guide to the performance of the FCWS can be gauged from a questionnaire sent by HMIP to 600 parties in cases where welfare reports had been requested. From a 37% response rate (224 replies) 25% were not at all satisfied with the final report, 18% were not very satisfied. No follow up survey was carried out to find out why such a high level (43%) were not satisfied, and this cannot be simply explained by an attitude ‘that one party is bound to be disappointed’ which is prevalent with practitioners in family court proceedings.

33. Having made the above references to the HMIP and pointed out many failings of the FCWS, we feel it is only fair to point out that we understand many of the reasons for this. Lack of training or (in some areas) no suitable training at all, lack of resources, under funding and an increasing workload. Overriding all this is the fact that the FCWS is handicapped by a parent body - the Home Office - with little interest in the FCWS work. These are well known problems understood by individuals within the FCWS/Probation Service and also by many practitioners who use their services.

34. FNF would like to put on record that despite the above we feel that many CWOs still do a good and conscientious job, and that it would be very unfair to criticise CWOs in general because of the shortcomings of the FCWS.

35. Also in this paragraph (1.6) the CP refers to the 'priority given to the welfare of children'. This is meaningless unless welfare of children is defined. Too often the 'best interests of the children' is used in family court proceedings to describe recommendations or actions without any substantiated basis for the statement. Often it is simply just an opinion of a CWO or a judge.

36. The United Nations Convention on the Rights of the Child (UNCRC) (1.7 & 1.8) is a very important Convention and one which FNF is pleased to support, so we are comforted that the Government fully supports the principles of this convention.

37. While we appreciate that in a small number of private law cases there may well be a place for legal representation, we are concerned that Article 12 has formed such a substantial part of this CP. We know that the UN Committee in it’s first report on the implementation of the UNCRC suggested that the UK Government should give a greater priority to implementing Articles 3 and 12 of the Convention. We understand that this may be a good opportunity to promote Article 12. Nevertheless our concerns are twofold:

i) that this legal representation is being promoted by the legal profession for the wrong reasons, namely to get more business from family proceedings. Another party to a case will undoubtedly prolong the court process.

ii) the perceived need for children to be legally represented has overlooked the fact that this is only a result of the shortcomings of the FCWS.

38. We are concerned that other more basic rights of the child as defined in the UNCRC are not being recognised and promoted. These we highlight in Section 3.

 

Current Service Arrangements (Points 1.9 - 1.27)

39. This section was found to be a helpful guide to the origins of the FCWS, GALRO & OS.

40. The background and history clearly illustrates how these existing services are a result of adapting to 40 years of family related legislation, and confirm our view that a fundamental review of family court proceedings is required in order to define the new unified service.

FCWS (Points 1.10 - 1.14)

41. To illustrate the increase in the core work of the FCWS with the advent of the CA, the following are figures taken from Probation Statistics for England and Wales 1996 produced by the Home Office in 1997:

Year

1992
1993
 No of CWOs

623
697
 Reports Prepared

23,482
36,423
 Court Attendances

20,900
42,800

In this 5 year period requests to attend court more than doubled, with a 55% increase in welfare reports produced, yet in the same period there was less than a 12% increase in the number of CWOs.

GALRO (Points 1.18 - 1.27)

42. FNF has limited experience of Guardians ad Litem but the feedback we have is generally positive, both from our members and other professionals in the field. The child-centred role that they play in family proceedings may provide a model which a new unified service could be based upon.

 

Concerns about future arrangements (Points 1.28 - 1.31)

43. FNF welcomes the sentiments expressed in point 1.28, particularly the statement that 'Concerns need recognising and addressing - public consultation is only the first step in dealing with these'.

44. Questions raised in 1.30 are answered below:

i) The case for change is made out but understated, so the benefits outweigh the disadvantages.

ii) Yes, there is a real need for change to improve services. No, the Government's proposals must not be designed solely to reduce overall expenditure.

iii) New standards of qualifications and relevant experience must be introduced so that employees who match or better these can be assured of a job in the new service.

45. In 1.31 the CP states that 'the present court welfare arrangements are not in crisis'. That this sentence can be written is a large part of the problem, and it must indicate genuine concerns from within that there are significant problems. The results of the work of the service have never been evaluated by an outside organisation or agency and are in general protected from independent scrutiny by the confidentiality of court procedures.

46. We agree very much with the other views in 1.31, that 'change is not optional' and that 'The proposals in the Consultation Paper need to be placed within the wider agenda for change and the potential that may flow from it'.

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3. Omissions of Consultation Paper

47. The main failing of the CP is not recognising that other changes outside of a new unified court welfare service are required. In particular the practice and the application of the CA by the courts need to be reviewed at the same time as the court welfare services.

48. FNF would draw attention to the following omissions from this CP which we believe are relevant if a new unified service is to provide appropriate, quality services.

a) Application of the Children Act 1989

b) UN Convention on the Rights of the Child

c) Independent Advice or Other Agency

d) Cost Savings

 

Application of the Children Act 1989

49. The CP states that it focuses on our children with their welfare and needs uppermost, and it is worth pointing out that this review is in parallel with the Government's Green Paper Children First, with proposals for reforming the CSA. The Government, most other agencies and the general public now know only too well how the Child Support Act has to a very large extent failed to benefit the very children it was supposed to help. It is now accepted by Government that the CSA was fundamentally flawed from the start - the legislation was rushed through and the problems have become compounded year upon year.

50. There are some disturbing parallels between the Court Welfare Service, the judiciary and the court service in the application of The Children Act 1989. On the whole the legislation in the CA is good. The problem lies in the application. The Government should not be afraid to acknowledge that problems exist and to use this review as an opportunity to address the issues and properly seek appropriate solutions.

51. The review and development of a new unified service must not be taken in isolation. The courts and judiciary must review their application of the CA, and from this determine the kind of services that this new unified service should offer.

52. A new unified service would be much more effective, focused and efficient if the courts applied the CA in the way it was originally intended. In drawing up the CA it was the firm intention that shared residence would become the norm for private law applications.

53. It is now clear from the Children Act Advisory Committee reports and Dame Margaret Booth’s Report on 'Avoiding Delays in Children Act Cases' that no training and guidance was given to the judiciary and the FCWS at the time the CA came into force:

National Standards for FCWS only came into force on 1st January 1995.

Approved training for magistrates only came into force on 1st January 1997.

A private law induction course for full and part-time judges introduced in 1997.

54. This has resulted in the following areas of most concern:

i) 90 - 95% of residence awarded to mothers.

ii) Shared residence a rarity, yet expected to be the norm when the CA was being drawn up.

iii) The 'burden of proof' placed on fathers with contact applications, and contact arrangements with minimal time which is not conducive to a quality relationship for the child.

iv) Failure by the courts to enforce their own CA orders.

v) Failure by the courts and FCWS to recognise Parental Alienation Syndrome.

vi) The low priority and inadequate resources in handling private law cases, highlighted by Dame Margaret Booth’s Report on 'Avoiding Delays in Children Act Cases' but still no measurable improvement , worse at some courts.

vii) The percentage increase of welfare reports year on year since the CA was implemented.

55. It is worth remembering that parents take legal action in connection with their children, not to exercise power over their ex-partners. They do so because they are powerless to exercise their parental responsibilities for children, particularly when faced with ongoing resistance to contact by resident parents.

56. Fathers (often referred to as the 'absent parent'), by making court applications show that they have not withdrawn from parenthood but are seeking to ensure their children can exercise their right to continue to know both parents and the wider family. They should be supported, not condemned. Conflict for children is caused by intransigent attitudes to contact, and the current inability of the family justice system to deal adequately and swiftly with such behaviour.

 

UNCRC - United Nations Convention on the Rights of the Child

57. The UNCRC is raised early in the CP under the heading of child centred values. FNF is concerned that other more basic rights of the child as defined in the UNCRC are not being recognised and promoted. The same argument used in the CP to justify 'scope for improvement of the present arrangements in private law proceedings' in respect of Article 12 should be used to re-evaluate the application of the CA and bring it in line with the UNCRC. The following rights of the child are fundamental and certainly more child centred, and these should be at the heart of the ethos for a new unified court service.

58. The relevant UNCRC Articles 5, 9, 14 and 18 are included in Appendix B. In essence these articles enshrine the child’s rights to have equal involvement of both parents and their wider family, and these articles confirm that parents have equal parental responsibility and duties to their child. Although essentially the CA mirrors these articles they are not applied in the spirit of the UNCRC which was ratified by the UK two months after the CA came into force.

59. It is highly relevant that the UNCRC should be considered at this time as the next inspection by the United Nations committee which monitors this convention is due in 1999. Its first report in 1994 did not have any real opportunity to examine the effect of the CA. This time it will be focusing more on the general rights of the child which have not been catered for by the application of the CA. There are already a number of complaints from different organisations and individuals, including gender bias with regard to residence orders and enforcement of children’s rights for contact with a non-residential parent.

60. Non-compliance with the UNCRC will become an major issue for the Government over the next 12 - 18 months , so it would be best to address these issues in the next stage of this review process.

 

Independent Advice or Other Agency

61. There is also a need for advice before problems end up in the family court. At present, there is no agency to whom families can turn when faced with, for example, denial of contact with children. Social services are not appropriate, it is not within the remit of the FCWS, and solicitors only precipitate the adversarial route to court.

62. Whichever agency or agencies are eventually charged with overseeing the period for refection/information gathering before divorce under the Family Law Act 1996, it may be a move in the right direction. However, there is no provision for assisting with problems afterwards, or dealing with total intransigence. Recent research (Secker 1998) has shown that the main reason for loss of contact was the resistance of mothers.

63. Many refused to co-operate with whichever agency (FMS, FCWS etc) tried to resolve problems. They might be more likely to co-operate if persuaded that this is in the interests of the children, or faced sanctions e.g. community sentence. The damaging consequences to children need to be both acknowledged and tackled.

64. We suggest that another agency or new unified service could intervene at the earliest stages of contact denial, counselling the intransigent parent or providing corrective treatment for the child in difficult cases of parental alienation. These techniques are currently undergoing trials in America.

65. It may be that such family support will come from initiatives which stem from the latest Government paper on 'Supporting Families'. For now it should be an agenda item for any new unified service.

 

Cost Savings

66. Nowhere in the CP are there proposals to change current practices, only hints of other services for the future. We believe that there are cost savings to be made under the current regime but would also provide better service provision in general.

67. There are two main cost savings we believe could be implemented which would also have major benefits for users of the service, children and parents. The approaches outlined below would bring efficiency savings to the service but have a direct effect on other parties.

68. FNF proposes the introduction of a comprehensive welfare checklist form/questionnaire with respect to the children to be completed by both parties at the time of initial application or in the case of major changes proposed to the children’s circumstances. The aim of this would be to allow judges to act quicker by gathering all relevant information in a standard form, available to the court and the FCWS at an early stage.

69. Parties' statements can often miss vital information and frequently include incidents which have little bearing on the needs of children. Only in exceptional cases should contact of the child with both parents be an issue. Information presented in the form suggested above, with an opportunity to discuss matters with a CWO, would vastly reduce the number of welfare reports ordered. This would produce a major saving in CWO time, allowing the CWO the opportunity to manage his/her workload and devote extra time to those cases which really require more involved support.

70. This would benefit the parties but most importantly it would speed up the court process, thereby reducing delays and the stress and uncertainty for the children which generally increases with time.

71. If the above proposal was implemented it would reduce the length of most cases both in time and number of hearings, but more complex cases still need to be given special attention. It is not unusual for these cases to take from 9 months to 3 or more years to complete. Children in these cases suffer greatly, which may result in serious emotional scars. The financial outcome of these cases is the enormous cost to the Government and the parties (themselves often on Legal Aid).

72. Complex cases need to be identified as early as possible and given a higher priority both in CWO resource terms and time tabling via the courts. Evidence from problem management studies in various other related fields can also be applied to private law cases. A fast track approach when properly applied generally produces a fairer outcome, mainly because those who assist (courts and FCWS) and the parties are more focused. Relevant details and closer examination over a shorter period allows the caseworker to understand the family dynamics much better with the provision of appropriate recommendations.

73. If welfare reports were confined only to the most difficult cases then the current 10 week period for completion laid down by the national standards could be reduced significantly.

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4. Responses to the Questions

74. Generally, most of the questions asked in the CP clearly presume that a new unified service would just be an amalgam of the current services with little or no change to their existing functions. We have already outlined our reservations to these presumptions.

75. It is also worth observing that the way the questions are laid out makes it difficult to give short succinct answers, especially where more contentious points have been raised in the preceding text.

76. FNF’s responses (see below) to the questions should be considered in the light of our reservations or other qualifications of statements made in the CP, to which we have drawn attention in Sections 2 and 3 of this response.

 

A New Service

Q1: Are the overall aims of a unified service acceptable? If not, in what ways should they be amended?

FNF broadly agrees with the overall theme that where a Court Welfare Service is required it should provide a good quality service in promoting the welfare of children. There is certainly great merit in providing other advice and support services for families. But it should not be assumed that welfare reports are the only means of providing relevant information to the court.

We agree that the UN Convention of the Rights of the Child should be closely followed, but Article 12 is not the most important or fundamental principle that a new service should try and accommodate. While legal representation of children may need to be reviewed for private law cases, in the best interests of children it would be best if this was tightly regulated so that it is the exception rather than the rule.

We would challenge the view that there is a high quality of existing services.

Essentially, as highlighted in our concerns in Section 2, we believe that the overall aims of any new service need to be defined after a wider review of what support services are actually needed.

Q2: Are the proposed functions of a new unified service appropriate? If not, in what ways should they be changed?

We agree that the proposed functions of a new unified service are appropriate. But both existing and new functions need to be redefined in light of the new unified service, and this can only be done when a wider review has been carried out.

We would, however, state that there must be a clear distinction between the services offered in Public Law and those offered in Private Law. There must also be a clear threshold/demarcation between Public and Private Law cases.

Q3: What should be the role of the Official Solicitor in relation to children's cases?

There is no need for the Official Solicitor role, this will be carried out by representatives of the new unified service. The Official Solicitor's department should have all its responsibilities to act in children’s proceedings transferred to the new unified service at the earliest opportunity.

Q4: Which model for a new organisation appears most satisfactory and why? Are there other models which should also be considered? If so, what are they and why might they be preferable?

We have no particular view on a model except that it would be premature at this stage. The main criterion is that suitable well trained and qualified resources are provided nationally so that appropriate cover is maintained in rural and urban areas. The administration and application of national standards developed jointly by the professional services and the consumer are also vitally important.

Q5: Does the balance of advantage lie with close or relatively close Ministerial supervision of a new unified service or should it have a constitutional position at arm's length to central Government? Would it be appropriate for the new service to be part of an existing organisation? If so, which one?

Any unified service would benefit from close Ministerial supervision in its early stages but, preferably, would benefit from being part of a new ministry which focuses on the family. A Family Ministry which is child centred or a Minister for Children could combine a number of current departmental functions and would properly address many family and children’s issues which are not currently being handled well. Such a move would arguably reduce the significant cost to the state of children and families, many of whom live below the poverty line.

Any new unified service must NOT continue within the Probation Service.

Q6: Is a regional structure for a new unified service necessary? If not, what alternatives might be preferable? If a regional structure is desirable, what should be the number of regions and their catchment areas? How important is it that a regional structure achieves co-terminosity with other specific services?

Some kind of regional structure is necessary for any new unified service. The models for a regional structure and the number of regions are not possible to determine at this stage until the service and its functions are fully defined and agreed. For example, if the service has a narrow brief and only provides services to the courts then it would make sense to have it organised in line with current court circuits.

It is vital that regional services adhere to national standards so that there is consistency of service and outcome. This will be the greatest aid when interfacing with other specific services.

Q7: Is the suggested approach to independence satisfactory? Should professional recommendations of practitioners to court at final hearing be given a special legal status similar to that of an approved social worker under mental health legislation? If so, would exceptions be needed for certain categories of staff within the service such as trainees? Would there be advantage in creating an independent statutory office for the head of the service?

FNF believes that practitioners can only be given a degree of professional freedom when they have achieved truly professional qualifications and verifiable professional standards. The practitioner’s recommendation to the court may then become an individual responsibility. When individuals are given such independence it should also be possible for judges to assume their true role, which is not to follow slavishly the recommendations of the CWO (which they often do at present) but to take these recommendations into account in reaching their own conclusions.

An independent organisation to regulate and monitor performance would be necessary. This body could also handle complaints. A complaints procedure is extremely important, but to be effective the complaints procedure must also be swift and simple. Otherwise court judgements may be issued on the basis of CWO reports which the complaints procedure may later find to be faulty.

The cross-examination of CWOs on the contents of their reports is a very necessary part of the court process, and one which should be formally recognised.

FNF considers the suggestion that trainees should play an active part in determining outcomes for children in either Private or Public Law cases a cause of great concern. Properly qualified and accredited practitioners must always be used.

Q8: Although the functions and organisation of a new unified service need to be taken into account, which central Government Department is the most appropriate to have the policy lead for such a service - and why?

Serious consideration must be given to placing any unified service in a new ministry.

If it has to be placed in an existing Government Department we believe that it should not be the Home Office, which has continually shown a lack of interest and responsibility for the Court Welfare Service. The FCWS as part of the criminal-oriented probation service is unacceptable. Families experiencing difficulties should not be subjected to practices and attitudes which originate from dealing with criminal work. Also, the recent downgrading of entry qualifications for the Probation Service (from previous ones which were already insufficient for FCWS work) is not acceptable.

There are good and bad arguments for placing the new service in Department of Health or LCD. We would reserve judgement on this until it became clearer what the form and direction any new service is likely to take.

Q9: Do you agree with the proposals concerning the purchase of services?

If quality services are being offered to the public and this can be maintained by the new unified service purchasing services from outside with the controls outlined then we can agree to this proposal.

Q10: Do you agree with the proposal that a new unified service should have discretion to engage both employed and self-employed persons to the organisation?

We have no objection to personnel being both employed and self-employed. The most important criterion is that personnel are suitable qualified professionals in an organisation where ongoing training is a high priority, so that quality and public confidence is maintained.

Q11: It is proposed that recruitment and career structure issues, including remuneration levels, should be determined in the run-up to establishing a new unified service, and thereafter within the service rather than be the subject of detailed consultation at the present time. Is this approach satisfactory?

It is fundamental to any re-organisation that the principles upon which the new service is based should be defined. This includes recruitment, career structures and training. These should be developed at the earliest opportunity in order to attract and retain the high calibre of professionalism needed.

Whatever form a new unified service takes it will not be fully operational for another 3 years. There are resource issues which need to be addressed now. To leave this until the re-organisation is complete is to miss an opportunity to address the current shortcomings.

The Government should send a clear signal that standards need to be raised rather than implying, as in the Consultation Paper, that all is well.

Q12: Should the opportunity be taken within a new unified service to set out the powers and duties of practitioners under one generic title? If so, what generic term might be appropriate? If not, should the particular functions of the FCWO and Guardian ad Litem continue to be known by these titles within the unified service? What should be the name of any unified service?

The Public Law and Private Law distinction must be maintained. This is best reinforced by separate names for those asked to act in the two very different types of cases.

It may be that the some services provided in the Private Law area would require little or no formal court activity, particularly in the case of mediation referrals under the Family Law Act 1996. FNF proposes that the title Family Court Welfare Officer should be replaced with a title such as Family Welfare Worker or Welfare Caseworker, as suggested in the CP.

Individuals within the service may be multi-disciplinary, but they should be clearly identified by a title which fits the service they are providing. The title should be user friendly, especially for children. The title 'officer' is too officious.

Another benefit of a change of title is that it would prevent preconceived ideas or current role expectations from being carried forward into what should be a re-defined roles with appropriate improved qualifications.

Q13: Are the proposals about quality assurance, standards and inspection appropriate?

Yes. We agree with what is proposed, but if it is based on existing systems, it will not work.

Q14: Within the proposed overall structure of a new unified service, is there a role for an advisory committee? If so, what might its functions cover and membership include? If an advisory committee structure is felt to be desirable, should its remit be placed on a statutory footing by being set within a regulatory framework?

Yes, there is a role for an advisory committee, but with the following qualifications.

We do not have particular views whether it is placed on a statutory footing or set within a regulatory framework. The most important attribute is that it can advise upon and where necessary bring about changes for good working practices.

It is not necessary for a proliferation of advisory committees. There should be just one, overseeing all the regions. The committee should be much smaller, 8-12 in number, with provision that 'experts' can be called on or a sub-committee formed where problems or necessary changes are identified. One committee can then set guidelines and changes to standards for the whole structure, establishing consistency for all of England and Wales. Regional issues should be much more a function of the day to day management. Any advisory committee must include lay members of the public.

Q15: What arrangements for the provision of a unified service would best fit developments in Wales, including plans to establish the National Assembly?

The provision of services must be the same for England and Wales. Regional provision in Wales should be administered in Wales but as the law is the same then the same standards and guidelines must apply.

 

Representation of Children in Family Proceedings

Q16: Within a new unified service, should limited discretion be introduced as to the use of legal representation for children in public law cases? If it is, what should be the scope of any flexibility and who should exercise it?

We have no particular views on changes to the current provision of legal representation for children in public law cases.

Q17: Within a new unified service, are there any types of private law cases in which a wider range of welfare duties should be undertaken by caseworkers? In what circumstances might it be appropriate for a child to be joined as a party to private law proceedings and entitled to separate legal representation? Should this be possible in family proceedings courts as well as in the higher courts?

Yes, there are types of Private Law cases in which a wider range of welfare duties should be undertaken by caseworkers. This approach for a very limited number of more complex cases would greatly assist the current situation, and limit further the need for separate legal representation of the child in Private Law cases.

The circumstances appropriate for a child to be joined as a party to proceedings in Private Law need to be looked at very carefully, but the four examples given in the CP are a good starting basis. Private Law cases where representation for the child is justified are very much the exception. But they do exist, and require judges of a high standard and experience. Therefore it should not be possible for these cases to proceed or to be discounted unless a genuine new range of services outside of court proceedings are on offer.

As set out in the CP and in FNF's view these complex private law cases where representation for the child is justified are very much the exception. They will require judges of a high standard and experience, therefore it should not be possible for these cases to proceed or continue to proceed in the family proceedings courts. They should be transferred to higher courts and given a higher priority. (The more complex cases always result in much longer delays, which must be avoided as per the CA).

Q18: Should the Government implement Section 64 of the Family Law Act 1996? If so, should this proceed independently of the Government's consideration of proposals to set up a unified court welfare service? Should Rules define the criteria for separate representation by a court welfare officer, by a legal representative and by both?

No. The case is not yet made for implementation of section 64 of the Family Law Act 1996 for separate legal representation of children.

It would be helpful in some cases for a welfare caseworker to assist the parties in coming to terms with their own joint agreement, which if necessary becomes a court order to formalise arrangements. It would be helpful if the rules of when a welfare caseworker could/should get involved are set out.

Q19: Is the suggested range of functions for an in-house legal capacity within a new, integrated court welfare service appropriate?

No. Any in-house legal service would need more extensive consideration than the functions suggested. The functions and services of a new unified service need to be properly defined first, and the need and scope of in-house services would follow from this.

Q20: In what circumstances, if at all, would it be appropriate for children to be represented by in-house lawyers from the service?

At this stage it is premature to consider any circumstances where a child's legal representation should be carried out by in-house lawyers. The question of independence in both public and private law cases arises.

Q21: In cases where external legal representation is needed, should children always be represented by solicitors and/or barristers who are able to demonstrate specialist knowledge and experience through some form of accreditation similar to that of the Law Society's Children Panel? Are the proposals likely to ensure improved control of legal costs and consistent quality of legal representation?

Yes. Properly qualified and accredited legal representation by solicitors and barristers similar to the Law Society's Children Panel. If nationally agreed standards for legal representation are implemented and nationally agreed legal fees are published, it must improve consistency and quality.

 

Current Costs and Future Funding

Q22: Is the approach to clarifying future funding details satisfactory? Should a unified service have powers to charge fees and/or recover costs from parties in litigation?

No. The approach to funding is clouded by the way the current services are run and organised. The CP admits to too many estimated costs.

A 'back to first' principles approach is required when a new unified service has been more completely defined. Details of existing costs for similar services and administration will need to evaluated as part of a new costing exercise for a new unified service.

Recovery of costs and charging for services for private law cases needs to be discounted at this stage, unless a genuine new range of services outside of court proceedings are on offer.

Most current applications before the court in Private Law are for contact and/or residence. Virtually all are genuine, but they frequently involve one person being unreasonable, often supported by Legal Aid. The present system does not adequately provide for costs to the private party from an unreasonable Legal Aid applicant or respondent.

FNF is aware of many cases where more Legal Aid money is spent defending a situation where court orders are broken. The current track record of enforcement of court orders in CA cases is extremely poor.

If the judicial system and the application of the CA is overhauled in conjunction with a new unified service as per our recommendations, and when this is seen to be working then charging of fees may be considered. For example, the award of Legal Aid to a party might be subject to that party agreeing to observe court orders.

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5. Recommendations

FNF’s recommendations encompass three main areas:

i) Changes in the short term to improve the court service now.

ii) Wider brief required for a review of court proceedings which affect children and families.

iii) Shape of things to come.

 

i) Changes in the short term

R1. New guidelines for CWOs with respect to CA contact and residence applications urgently need to be drawn up. Consultation for this should include representatives from organisations who represent the general public and are experienced in the issues and outcomes of the family court proceedings. These guidelines need to be properly based on the CA and the UNCRC with particular reference to Articles 5, 9, 14 & 18. The guidelines must reflect that children should expect quality contact with both parents and that shared residence should be considered the norm. If sole residence is to be awarded, then gender bias must be eliminated.

R2. A comprehensive training scheme for FCWS must be initiated as soon as possible based around new guidelines on contact and residence. This is vital if CWOs (or their equivalents in the new service) are to provide a quality service and achieve a true professional status. This is not optional.

R3. CWO staffing resources should be reviewed in the light of delays in the system. New staff should be recruited accordingly, with both new and existing staff given comprehensive training.

R4. The LCD and the FCWS to re-examine and apply the following Children Act Advisory Committees recommendations:

a) Implement all of Dame Margaret Booth’s report on 'Avoiding Delay in Children Act Cases'.

b) Apply the procedures in the Handbook of Best Practice, June 1997 to all family courts in England and Wales.

R5. The next stage of the review process must involve the general public via organisations concerned with family matters relating to relationship breakdowns and those with experience of the family court process. A mix of views should be properly represented.

 

ii) Wider brief required for a review of court proceedings.

R6. The Lord Chancellor's Department, via the Advisory Board on Family Law, must review the workings and application of the CA. The judicial inconsistencies, divergence from the CA's real intentions, and training for the judiciary must form the basis for this review.

This review must seek to:

a) Eliminate the unacceptable delays for private law cases.

b) Introduce clear guidelines for judges, including putting the onus of proof on any parent who is trying to prevent quality contact time and/or residence arrangements.

c) Provide clear instructions on enforcement of CA court orders, introducing a range of punitive measures for the non-compliant parent, and act much more quickly in these complex cases.

R7. The LCD and the Home Office, via the Advisory Board on Family Law and the FCWS, must examine current practices and services provided to the courts by FCWS.

In particular the following should be considered:

a) A more proactive role for CWOs in difficult/complex cases to inform the court, particularly with regard to speeding up the court process.

b) A comprehensive welfare checklist form/questionnaire with respect to the children to be completed by both parties at the time of initial application or in the case of major changes proposed to the children’s circumstances. This would establish all areas of agreement and disagreement before meetings with the CWO or a court hearing. The FCWS should develop a new advisory service for the parties to assist with completing this checklist form. The aim is to enable judges to act more quickly by challenging any party would does not make adequate contact/residence provisions and reducing the need for a court welfare report to a minimum.

c) A counselling service for the intransigent parent, an opportunity to firmly counter one of the main problems in CA Private Law cases, with a focus on children's rights, not the carer's needs.

R8. The LCD, via the Advisory Board on Family Law, to make provision and include members of the general public on local Family Court Forums and Family Court Business Committees. The present 'professionals only' approach does not understand the consumers' views and does not address the real concerns that the Private Law applicants and respondents have with the system.

 

iii) Shape of things to come

R9. A unified service which fits the needs of a revised family court process and can refer to or work with other organisations to provide additional services helping families in relationship breakdown. We agree that an integrated serviceis required but it must be one that is able to do a demanding and important job with the appropriate standard of service.

FNF believes that a new unified service, if properly constituted, would in time reduce the need for, and expense of, the court support services as currently operated in Private Law cases.

R10. A Government ministry or agency which specialises in support for the family.

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6. Conclusions

FNF’s response to the CP is often critical and calls for a wider brief than the narrow focus of the review. Nevertheless, we believe that our response is appropriate and constructive.

This broader perspective needs to be understood and acted upon. To neglect this is to render any changes to the family court services ineffective and ultimately damaging to our children's needs.

We anticipate that the Government will be very reluctant to consider the wider brief recommended for various reasons. These may include:

a) involvement of more Government agencies

b) more costly and detailed review

c) additional time to complete a review

d) how to effectively engage the general public in the process

The social cost to society and the financial cost to the Government is difficult to measure, but there are many examples in recent years of rushed legislation causing more problems than its original intention.

The family court system invariably sees the worst case situations of break ups in family relationships. Appropriate, firm and just outcomes in family law cases can be an example and an effective force in deterring the countless additional family situations which do not reach the courts. It will help parents to properly understand what their children’s rights and needs are if the family court system provides fair and consistent outcomes.

Ultimately this can reduce the current need for families to resort to the courts to solve divorce and other family breakdown situations.

The implications for reduced Government costs and the ability of families to self determine their own affairs are obvious.

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Appendix A

 

Letter to Minister of State, Review of FCWS

19th December 1997

Ms Joyce Quin, MP
Minister of State
Home Office
London SW1H 9AT

Dear Ms Quin

Review of the Family Court Welfare Service (FCWS)

I am writing to you on behalf of the national charity Families Need Fathers (FNF), who are the principal organisation in the UK providing information and advice to parents who have lost contact with or are trying to maintain contact with their children. FNF has been in existence for 20+ years. We have a great awareness of the family court process, arguably more than any other charity.

FNF is aware of the current Home Office review of the Probation Service (PS). As the Family Court Welfare Service (FCWS) is a department within the PS we are sure you are also reviewing its role and performance.

Most parents who have been involved with a court application for residence and/or contact via the Children Act 1989 will have had dealings with the FCWS. The FCWS play a key role in many children’s lives. Unfortunately our charity has found a high proportion of its members dissatisfied with the operation and role of the FCWS and the practice of some Court Welfare Officers (CWO).

We believe the FCWS is failing to deliver the appropriate service to children and the courts for the following reasons, most of which are interrelated:

1. CWO - Background and experience. The PS provides the majority of CWOs, and has a policy of mobility for individuals with the cycling of probation officers through the FCWS. Their experience is with criminals and offenders. Parents and children with contact and/or residence applications are ordinary citizens not criminals.

2. Inconsistency of practice and outcome. Nationally there are 54 separate FCWS, each operate independently. There is no uniformity of practice.

3. Training. From what we have discovered there is minimal training given to CWOs or their seniors, and what there this is patchy and inadequate.

4. Qualifications. The new arrangements for the recruitment and qualifying training of probation officers as recommended by the Home Office dispense with need for a social service higher education qualification. This is a primary requirement for court welfare work.

5. Lack of adequate complaints procedure. We have found no evidence that any of the 54 FCWS have an adequate complaints procedure. Where the FCWS do handle a complaint they only investigate the procedural aspect and not the substance of the complaint.

6. Attitudes and Practice. The FCWS has been in operation for some 20 years and with this attitudes and working practice have developed. Unfortunately we have found a widespread bias in favour of mothers and not the best interests of the child. (Example: NAPO document re: Anti-Sexism Policy)

7. Inadequate funding. The FCWS is under funded and as a consequence under resourced. A clear illustration of this is that between 1992 & 1996 requests for court welfare reports have increased significantly but main grade and senior officer posts only rose slightly.

8. Quality. The above points show that there is no starting position for quality in the FCWS.

9. Importance to Judicial outcome. The Judiciary rely upon the FCWS to produce balanced and well researched reports so that they can make suitable orders. Between 80 - 90 % of judgements will match or closely match the court welfare report recommendations. The above points illustrate that a high proportion of judgements are ill founded having a major detrimental affect on tens of thousands of children’s lives each year.

The recently completed inspection of the FCWS (HMIP Family Court Welfare Work: Report of a Thematic Inspection 1997) does draw attention to some positive aspects of FCWS practice, but there is no doubt that overwhelmingly it highlights most of problem areas identified above. There are other issues and problems it does not address and specifically does not seek to understand the effectiveness of CWO report recommendations and more importantly the long term outcome.

The HMIP also note quite pointedly that many recommendations made in the last inspection and report of 1991 have not been implemented. Our children cannot be made to wait for another six years in the hope of some improvement.

Therefore we feel the time is right to place this service with a much more appropriate Government agency, where the specialist skills required can be properly funded and the right kind of training and management can be put in place.

FNF is of the firm opinion that The Lord Chancellor’s Department would be the most appropriate Government agency to oversee the FCWS and that they are interested in providing this public service.

We would welcome the opportunity to discuss this with the Home Office as a matter of urgency and therefore we request a meeting before the review is finalised so that our views can be taken into account. This would enable us to give you more detailed argument and facts in order to substantiate the points made.

We trust that the inclusive style of Government that the Prime Minister is encouraging would extend to the Home Office in respect of the FCWS and that the views of the consumer can be heard directly.

Yours sincerely,

David Burton
FNF Family Court Welfare Committee

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Appendix B

 

UN Convention on the Rights of the Child

 

Relevant Sections

Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Article 14
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

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Families Need Fathers

November 1998

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