Cafcass board faces constitutional crisis

A leading lawyer has said that the Children
and Family Court Advisory and Support Service is facing a
“constitutional crisis”.

According to Association of Lawyers for
Children chairperson Liz Goldthorpe, the Cafcass management board
has “struggled quite hard” with its role in relation both to its
own senior management team, responsible for the day-to-day running
of the organisation, and to the Lord Chancellor’s Department, which
set up Cafcass in April.

As a non-departmental public body, Cafcass is
meant to be independent and at an arm’s length from government, but
Goldthorpe said it was not acting in this way.

Speaking at the National Association of
Guardians Ad Litem autumn conference in Birmingham, Goldthorpe told
delegates it would have been far better if a “shadow legal
authority” for Cafcass had been in place before its launch so that
it could have made board and senior management appointments.

Cafcass would then have retained its
independence, instead of the Lord Chancellor’s department making
decisions – a state of affairs highlighted in a recent judicial
review over the terms and conditions, and independence, of
self-employed children’s guardians transferred to the service
(News, page 4, 20 September).

Goldthorpe said the Cafcass board had been
kept in the dark for the past six months in relation to the ongoing
dispute with the guardians. She added: “The independence of the
service is not just about the independence of the guardians, but
the independence of the service as a whole. Independence within the
organisation needs clear, robust thinking.”

She added that although guardians have in the
past flourished through being free of an organisational role, there
was still a need for external appraisal systems to ensure the
maintenance of high standards, she added.

Nagalro council member Carol Edwards told the
conference that the association was working on four principles to
underpin future negotiations on “cost-monitoring service contracts”
with Cafcass.

Firstly, they should allow children’s
guardians to be paid at a level no less than they were paid at the
end of March. Secondly, the contract should lend itself to costs
and performance monitoring, while retaining guardians’ ability to
exercise their professional discretion in fulfilling their duties
under family court rules. Thirdly, they should take account of the
different types of cases in the various courts. Finally, there
should be a dispute resolution framework to help settle any
disagreements over costs or performance.