Martin Sewell is a Kent-based family lawyer specialising in child protection.
If you were to ask most childcare professionals what is the single most beneficial innovation for children over the past fifty years, most would nominate the creation of the role of the Children’s Guardian (formerly know as the "Guardian ad Litem").
The public outcry, following the death of Maria Colwell in 1973, led to much soul searching and a public enquiry, which led to children involved in legal proceedings being given an independent social worker and lawyer to act on their behalf. They worked together as a team with access to all Court papers, past histories and official files. They had a limited case load, spent time with the children and their families and ultimately assisted the Court with recommendations independent of the views of parents and Local Authorities. Few children have died once a Children’s Guardian was on the scene.
In the early years they were highly experienced self employed social workers with many years' experience. Often they had become disillusioned with Local Government practice and knew a great deal about where the deficiencies lay. They delighted in their new found freedom to tell the Court what was really happening in official care and judges came to know trust and rely upon them heavily.
They were modestly paid by the hour, and their organisation was both efficient and delightfully low-tech. A single administrator for an area sat with a telephone and a card index. When a Court needed a Guardian, the administrator asked a little about the case, judged if special expertise might be needed, made a few phone calls, called in a few favours and the child was immediately assigned a Guardian. When there was difficulty, a call to the child’s lawyer usually "did the trick" as they knew which of the Guardians were concluding cases and suggested who to try next. When not on the telephone the Administrator checked simple expense claims.
This was not good enough for New Labour.
The Children and Family Court Advisory Support Service emerged in 2001 as an amalgamation of the Official Solicitors Office and the family side of the Probation Service. From the outset, the old model of working was abolished.
Self-employed Guardians were to be phased out, and only litigation by their professional body NAGALRO prevented this complete exclusion. They could, however, be squeezed out by alternative mean. Not a single self-employed Guardian (who had comprised the entire service for over 25 years) was appointed to the Board of the newly formed Organisation. Out went the card index, and the new body moved into Canary Wharf. At the very same time CAFCASS economised by ceasing to pay travelling expenses to self-employed Guardians.
Although the CAFCASS website speaks of the Guardians as "experienced" you can now join the service with only three years of social work practice. All reports are required to be checked by a manager. Budget constraints mean that although there is still high expertise amongst the diminishing band of self employed Guardians, the waiting lists are growing. It is a scandal that experienced Guardians are going off to work as independent social workers at the same time as children’s cases are coming to trial after nine months with no independent Guardian having been appointed.
This is not only bad for children but wasteful to the public purse.
Recently I sat with a self-employed Guardian in a Court whilst a colleague struggled in vain on the telephone to persuade CAFCASS to honour its obligation to appoint a Guardian for a ten-week old child whose removal was being sought. Beside me was a highly experienced self employed Guardian willing and able to take the case on.
CAFCASS refused to authorise her appointment because they had no budget for the self-employed. All the advocates agreed that if, after looking at the papers and talking with the parties, the Guardian reached an independent experienced conclusion, then the case might not need to be contested all day. She was being paid the same princely sum of £30 an hour whether she sat waiting (with half a dozen lawyers) on my case, or got on with the job that needed doing.
This is by no means untypical of the stewardship of the CAFCASS organisation as a whole. It is not fit for its purpose and should be abolished. Its core administration should be undertaken by the Legal Aid Commission and a speedy return to the flexibility and efficiency of its earlier years promoted with savings in management costs being allocated to re-creating the old self employed ethos when current problems were unknown.
