What is the alternative to Cafcass?

Doubts over Cafcass’s future fuel speculation over what could replace it

The family justice review, due to report in Spring 2011, must both reform a family courts system buckling under the strain of rising care applications and make massive savings.

Small wonder then that speculation has focused on whether the axe will fall on the children and family courts advisory service, Cafcass, which has faced heated criticism over its handling of the referrals spike.

The leader of Surrey Council and Department for Education adviser Andrew Povey recently went so far as to publicly call for the quango to be scrapped and its responsibilities transferred to councils. But if Cafcass was to go, what exactly are the alternatives?

Family lawyers are against local authorities taking control, according to Rachel Rogers, head of policy at family law organisation Resolution. “Our members’ experience of Cafcass is patchy, but there is also a lack of confidence in local authority social work,” she says.

Graeme Kenna, a solicitor in the local government team at Weightmans LLP, says disbanding Cafcass would be “too radical and too simplistic.”

“Although Cafcass is showing strain, I’ve seen no credible alternative. You would have to put something equal in its place and that would cost. Councils don’t have the resources and there must be at least a perception of independence for families.”

Matt Dunkley, vice president of the Association of Directors of Children’s Services, points out that while councils might be able to make efficiencies by taking on some of the roles of Cafcass, they too are short of money and under increasing strain from referrals.

Margaret Wilson, chair of the family courts committee at the Magistrates’ Association, feels local authorities are not appropriate because it is “important that guardians are independent”. But she would like to see a more localised model under the jurisdiction of the courts.

“When we have a problem, we are told it is dealt with centrally, but Cafcass’ central office say it’s a local problem. Cafcass is far too bureaucratic.” However, quite how a localised model would look and work is still to be debated, she admits.

Anthony Douglas, Cafcass chief executive, says there is no one who could or would be willing to take on the functions of the body. “Private organisations haven’t had much success in the past and charities are unlikely to see it as their role.”

Not all local areas would also have the robust infrastructure needed, he adds. Meanwhile, he and Wilson are in agreement that a localised model would still need a central body to control regulation and standards.

Douglas is in the process of finalising the submission from Cafcass to the review panel which will explore different options. “One is that we could triage every case and be involved in some and not others, depending on the case and its needs. The threshold for our involvement could be set higher than it currently is.”

He knows this approach is unlikely to be popular with the legal profession but the government is looking to make huge savings across the family justice system which means “there are no easy answers”.

Indispensable services

There has been widespread reluctance in the legal profession to drop guardians. This could change with the review which, one senior lawyer tells Community Care, is examining which services are “indispensable” to the family courts and which only certain professions can do. The lawyer continues: “Cafcass may not be safe, but there’s no reason to assume other areas aren’t being looked at too. This is not just a Cafcass issue, this is a family courts issue.”

In that light, Douglas believes it is the safeguarding role that Cafcass plays which must be defended. “We think it is saving lives. In private law, especially, court cases often lead to extreme tensions and violence, so safeguarding is crucial.”

But Kenna says this has driven a need for a statistical product showing the impact Cafcass has had when courts actually want welfare advice.

Wilson agrees. “It’s the court that makes the decisions, but if we don’t have sufficient advice to be making those decisions, where does that leave us?”

This appears to be the current tension dominating Cafcass’s existence and which the review panel will have to resolve. Is it there to safeguard or to give the court welfare advice? There does not appear to be enough money to let it do both.

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