CAFCASS faces judicial review

The crisis affecting the Children and Family Court Advisory
Support Service (CAFCASS) about the contracts of children’s
guardians, remains unresolved. The National Association of
Guardians ad litem and Reporting Officers (NAGALRO) has been
granted permission to seek a judicial review of CAFCASS plans for
self employed guardians and in particular the decision made in
February to pay them on a banded rates (or graduated fees)

The majority of guardians are self-employed and have been paid
an hourly rate. They say their professional status is being
undermined because the contracts offered by CAFCASS do not take
account of the complex and demanding work they do. They say the
scheme is inequitable, unreasonable and contrary to the necessary
work and independence of the guardians. It is estimated that
employed guardians are being offered 25-30 per cent below what they
might reasonably expect given their level of experience and
expertise. It is reasonably safe to assume that fees for
self-employed guardians have been calculated at a similar rate.

The government argue that the CAFCASS budget is up 3.8 per cent
on the previous year. They have so far declined to disclose how or
when that was calculated. Indeed it is not clear that the present
management of CAFCASS know. The attitude of the Lord Chancellor’s
department appears to be that CAFCASS can apply for an increase in
the budget if they think it is insufficient – knowing full well
that it would not take effect until the next financial year. The
present CAFCASS executive was presented with that budget as a fait
accompli on their arrival and must now see the management of it as
a poisoned chalice. ‘It’s your agency, get on and run it with the
money available.’

What is equally obvious is that the authorities are determined
to exercise cost control, either through employed guardians or
through fees per case for those who remain self-employed. CAFCASS
and the Lord Chancellor’s department argue that the Inland Revenue
requires the imposition of fees per case if guardians are to remain
self-employed. In so far as CAFCASS has relied on this in reaching
its decisions about contracts, it would seem to be misconceived and
potentially reviewable. The suspicion must be that the department
wants fees per case (as it imposed on the Bar), and to bring
contractors within that control is pressing CAFCASS to use any
means at its disposal, including the Inland Revenue, to achieve

The conspiratorial view would be that both CAFCASS and the Lord
Chancellor’s department would be very happy to have the existing
self-employed guardians leave the service. They provide a standard
to which neither organisation aspires. They provide a focus for
continuing to fight for that standard. Without them it will be
easier to reduce the budget to a level comparable with the former
court welfare service, where reports to the courts within 12 weeks
and without any real representation of the wishes and feelings of
the child become acceptable. That is probably unfair to CAFCASS
employees, but unless they stand up for the standards, they give
the appearance of acquiescing in a hidden agenda.

There are some simple observations which those engaged in the
conflict might wish to consider.

1. A costing review and job evaluation should be undertaken in
an open manner. Clearly the project team which set up CAFCASS did
not understand guardian’s work. Discussions at regional forums held
by CAFCASS have largely produced conflict and anger. The CAFCASS
Board need to see the proposed contracts and should be involved in
evaluation. What standards are the courts expecting? What will
Children Panel solicitors need from guardians in order to provide
adequate representation? CAFCASS should at least avoid the
appearance of seeking to reduce skill levels.

2. Children’s guardians cannot expect to maintain the same level
of independence nor the same unchallenged accounting systems as
they have had for the last 20 years.

3. Local authorities may want to curb the powers of guardians
who have exposed too many gaps in practice in the past, but it
should be sufficient for future protection against some of the poor
guardian practice that has existed, that the new organisation will
have an independent management structure to which guardians will be

4. The moratorium on implementation of the new contract should
be extended indefinitely. The self-employed guardians are a
diminishing problem in any event. Clearly CAFCASS will not be
employing more people on the existing basis. Too complicated to
wait, it is said; the Inland Revenue will not wear it. How about
some government?

5. Get real. In its acknowledgment of service of the permission
application, CAFCASS attacked the judicial review application on
the basis that the decision concerning the contracts was not made
by CAFCASS. Whether or not this is legally accurate, it is fatuous.
The board through its chairperson and the project team has clearly
been engaging in negotiations and offered a contract which they
wished to have accepted.

6. The fees per case system is as inappropriate for the work of
guardians as the Lord Chancellor eventually accepted it was for
solicitors. Two recent developments amply illustrate that the
volume and complexity of work make it impossible to ascertain
appropriate fee levels in advance.

CAFCASS’ view of the service it can offer to children is a
budget-led managed service on the probation model. Although they
say they are optimistic about a solution to secure a sustainable
future for CAFCASS and the guardians’ service, the battle lines are
being drawn for the judicial review. CAFCASS and the Lord
Chancellor’s department appear determined to confront the guardians
and, unless ordered by the administrative court to reconsider their
decision, to force them to accept the contracts or leave the work.
Finding a balance between, on the one hand, maintaining
independence and paying a reasonable rate for children’s guardians
and, on the other, having them operate in a managed, financially
controlled system was never going to be easy. It has been made more
difficult by having politics played behind the scenes. The real
test for the judicial review is whether those games can be exposed
and challenged.

Without some urgent action we will look back on the inauguration
of CAFCASS as the end of the best standards of representation for
children, rather than what it could and should be, the beginning of
an innovative and exciting opportunity. If the government does not
respond positively in the next month, it is likely to be too late.
It is clear that many children’s guardians are already making
contingency plans to leave.

There has of course been a political vacuum. It will continue
for a while since the minister in the Department with
responsibility is new to this area of work. Rosie Winterton has the
CAFCASS prize within family policy. As an honours graduate in
history perhaps she had better mug up on why it was thought
essential for children to be well represented in the first place,
otherwise Sir Humphrey will continue to avoid the more penetrating

Richard White

White and Sherwin Solicitors

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