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The work of Guardians in care cases

 

One of my regular readers, Boxerdog, asked me to have a look at the CAFCASS commissioned research into the work of Guardians in care cases – it has been a bit of a week, and ordinarily this would have been much higher up my agenda.

Anyway, the report is here :-

https://www.cafcass.gov.uk/media/174659/sdcrvnafil008/caf_home$/rcafPRiordan/My%20Documents/Documents%20for%20the%20internet/FINAL_VERSION_Cafcass_-_The_work_of_children%27s_guardians_in_care_cases.pdf

 

The report sets out to answer two questions

1. What work was undertaken by Guardians?

2. When in the proceedings did that work take place?

 

So the fact that the research isn’t particularly helpful is the fault of the persons framing those parameters and questions, rather than flaws with the research itself.  I don’t think many people’s big unanswered questions with CAFCASS were these, but more about were they a genuine check and balance to the State, were they genuinely representing the voice of the child and looking at things in the round rather than the focus on “safeguarding” which seems to have crept in, was their work considered helpful and useful by other (shuddering at the word) stakeholders in the process – the children, the parents, the Judges?

 

But anyway, those are the questions we got. The answer to the second is “Mostly at the beginning” and in the first three months, chiefly.  Of course, most of the really important stuff in care proceedings is happening at the end, as assessments are completed, decisions are being made and the views of children about the range of options for their future is being gathered, so some might think that the balance here is a bit askew.  As a counterpoint to that, the meeting of the parents and relatives, reading the court papers, deciding on an expert and questions, and reading the social work files (ha!) all happens at the beginning, so I am perhaps being slightly unfair.  It depends whether the ‘front-loading’ means  “More at the front, but quite a bit all the way through”  or “almost all at the front and very little thereafter”

 

The report shows that CAFCASS met with the parents in 90% of care cases  (giving the benefit of the doubt, there ARE SOME parents who don’t involve themselves in any point in the proceedings, think 10% is rather high estimate of that) and met with/observed the children in 95% of care cases

 

Contact with the child
: the guardian had contact with the child in 95 per cent of cases. Four of the five cases in which there was no contact had some features in common, notably previous proceedings in respect of older children and the child being 0 years of age. In the fifth case the court found that the significant harm threshold was not met. The mean number of contacts per case was three, and the range was 0- 13 contacts. The type of contact was influenced by the age of the child. Thus, the guardian met with the child in 33 per cent of cases, but in every case where the child was aged 12 or older. Fifty seven per cent of children in the sample were aged four or under, the guardian observing children in this age group, in the presence of a parent, carer of foster carer, in 92 per cent of cases. There was telephone contact between the guardian and the child in nine per cent of cases
Not blaming individual workers for this, it is a shift in our times and the organisational priorities and how workloads are managed. But when I started, if a Guardian had visited the child 3 times during the course of the proceedings, they would have been SLAUGHTERED in the witness box. I remember on rare occasions seeing a Guardian ad Litem (as they then were) get completely taken to the cleaners for having made just 3 visits.  And that was in the days when care proceedings were shorter  (yes, before we had all of the protocols and PLOs to reduce the duration of care proceedings, they were actually quicker than 55 weeks) and more pertinently, before the Human Rights Act and article 8 was at the forefront of our minds.
What the report doesn’t look at, of course, is whether that contact is sufficient for the purpose of representing the child and being their voice in proceedings. As we diminish the role of independent experts in the court process (by a combination of cutting their fees until they don’t want to do it, and raising the bar on getting permission from the Court to instruct them), a good, solid, robust, inquiring and genuinely independent Guardian with no axe to grind other than “what does this child want, and what is best for them?” becomes a vital check and balance to the State, and this low-level of input doesn’t always provide for that.
Not the fault of individual Guardians – there are damn good ones who are very committed and work very hard, and rightly pull Local Authorities up on bad practice or decisions or unfairness, but the organisation s a whole decided to try to manage the increased volume and workloads by spreading the individual Guardians more thinly, and that has had profound knock-on repurcussions.
Back when I started, if you had a new baby born and there had been previous proceedings on a brother or sister, the first thing anyone would read from the old papers would be the Guardians report, which would tell you everything you needed to know, it would set the scene and give you all of the story of what had happened in the case. (you might agree with the final recommendation, you might disagree with it, but the report would tell you the story). I haven’t started with the Guardian’s report for many years now.

 

Reversing the dilution of “homeopathic’ Guardians?

The Ministry of Justice have published a series of consultation documents, setting out the contribution they suggest various ‘stakeholders’  (yuck) should bring to the table in our brave new world.

{I do like, though it is not the thrust of this post, that the Her Majesty’s Court Service contribution is to (a) send out the orders that the lawyers type up and email to them within 5 days, which doesn’t sound that onerous and (b) to have Court rooms available and Judges to sit in them. The phrase ‘don’t go mad’ springs to mind } 

The CAFCASS one interested me, to see what the MoJ think CAFCASS ought to be doing on the ground. 

 Warning, I am going to be snarky about our current ‘homeopathic Guardian’ model, not because I think that Guardians on the ground are bad or lazy (though of course, there are some who are, but just as you don’t judge GPs by Dr Shipman, and in the words of the Osmonds, one bad apple don’t spoil the whole bunch), but rather because I think their organisation has sold representation of children and the vital role of check and balance of robust Guardians to a LA down the river. 

They have responded to an unprecedented increase in demand for the services by watering down the role of representing children to such an extent that there’s barely any actual representation of children by Guardians left, and what we have is a ‘view on the papers’,  and run the risk that eventually their services will be dispensed with.

 I have seen many cases over the last few years with Guardians who have never actually seen a parent outside of the Court building, and where two visits to see a child is something of a miracle and something to be grateful for rather than being scope for savage criticism.

 So, this is one of those rare documents which is actually worth reading in full – it is fairly short.  I’ll pick out the good stuff here

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

 http://www.justice.gov.uk/downloads/about/moj/advisory-groups/cafcass-care-proceedings.pdf 

By first hearing

 The children’s guardian will provide assistance to the court at the first hearing in relation to the threshold, and the adequacy of the assessment carried out, or proposed, by the local authority.

The children’s guardian will appraise the proposed plans for the interim and, to the extent set out by the local authority, for the longer-term care of the child – whether by parents, others with parental responsibility, and/or other adults – ensuring that the local authority has given the plans due consideration. The children’s guardian will also assesses whether the plan is optimal, within the resources available to the local authority taking account of the child’s timescale.

 

[“Appraise” the plans is a lofty goal, quite often these days, “reading them” is a bit beyond the homeopathic Guardian model.  See, I did warn you about incoming snark at the outset]

By the time of the CMC   [which, let’s not forget will probably be by week 2 of the proceedings in the new model]   – underlining is mine

5. By the time of the CMC the children’s guardian will independently evaluate the local authority case to differentiate between thorough local authority applications and those where the guardian considers further work is needed. For the latter type of case, the children’s guardian will be intensively involved in the case on behalf of the child. The advice of the children’s guardian at the CMC is intended to help shape the case, and to support judicial case management.

6. The children’s guardian will read relevant parts of the local authority case records in order to gain a thorough understanding of the impact of previous interventions by the local authority and others. The children’s guardian’s analysis presented to court will be informed by direct work with the child and/or by observation of contact between the child and his/her parent(s)/carer(s).

7. The children’s guardian will analyse the local authority’s assessments and investigations, both direct and commissioned from others, to establish if all that could have reasonably expected to have been done at the pre-proceedings stage was done. This will be supported through constructive dialogue with the child’s local authority social worker.

8. The children’s guardian should, by the time of the CMC, see, hear, and know enough about the child to offer a clear view to the court about the child’s ascertainable wishes and feelings and the issues in the case affecting the child’s current and future safety and welfare. This includes assessing the benefit to the child from particular additional assessments and bringing to the court’s attention the child development implications of any delay within the case.

 

 

You know what? I would bloody love it, if Guardians were back doing this. Seeing the child, seeing the family, reading the records, grilling the social worker about the case, testing the evidence out in the field. That’s how we used to do it, and that was a period where we didn’t end up with a plethora of independent experts because the Guardian came to the table with a meaningful contribution.  That also reads to me as though the MoJ envisage that we will actually get the Initial Analysis on paper that is a requirement of the PLO but is a ‘custom more honoured in the breach than the observance’

 

For IRH/final hearing  (and throughout) – again, underlining mine

 9. The children’s guardian will advise the court about the possibility of the child’s attendance at court, and about any matters that s/he considers that the court should be informed. This advice may be given orally or in writing.

10. The children’s guardian will ensure that any reunification plan for a child is likely to be viable and to provide stability and permanence, especially if the child is returning to a home environment that was previously abusive or neglectful.

11. A written report must be provided to the court by the children’s guardian unless directed otherwise. The children’s guardian will produce high quality reports that are focused, analytical and evidence based, utilising the Cafcass analytical writing template. This will support robust judicial decision making and case management. Reports will generally be 3-6 pages in length, though the examination of a disputed or contentious issue may result in a longer report. Cross referencing information held elsewhere within the case file, in accordance with the Cafcass reporting to court policy, will ensure reports are succinct. Reports and evidence given in court will be informed by evidence from research.

 

12. The children’s guardian will provide the court with an analysis of parental capacity to meet the subject child’s/children’s needs, taking account of the timescale within which the identified needs must be met.

 

13. The recommendations of the children’s guardian will reflect the child’s needs in terms of placement and contact arrangements, explaining how these arrangements are likely to safeguard and promote the child’s welfare

 Not 100% sure that the combination of robust analytical reports and a 3-6 page aspirational length really goes together, but I applaud the spirit of what is here.

In a practical sense, that sort of length will mean that our current theme of Guardians not doing their own welfare checklist, as a counterpoint/comparator to the LA version, is likely to continue.  I LIKED, even as an LA lawyer, having an alternative version of the key analytical checklist before the Court, and would like to see it come back.

Let us see whether this actually gets adopted by CAFCASS, even if it does come in. After all, the PLO is routinely ignored.

What might be different is that, given the tone and direction we are heading in, that parents representatives will be forced, if they want an independent assessment, to persuade the Court that the Guardian’s contribution isn’t a reason to refuse that, and comparing it to what the MoJ say the Guardian should be bringing to the party would be one way of doing that.