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Repeal of Sections 11-17 of the Criminal Justice and Courts Services Act 2000 and Section 7 of the Childrens Act 1989: abolition of CAFCASS.

Comment 17th July 2010

 

"I can hardly read the literature on Family Law without simultaneous feelings of an awful sadness and profound rage. Sadness at what has been done to our children and their families and deep rage for our Family Courts and the inadequate practitioners that work within it."
Sir Bob Geldhof, Forward to the Custody Minefield Report Report,  "Relocation and Leave to Remove", December 2009.
 
Many of these inadequate practitioners work for The Children and Family Court Advisory and Supervisory Service (CAFCASS). CAFCASS was established under Sections 11-17 of the Criminal Justice and Courts Services Act 2000. In private law they mainly provide reports under Section 7 of the Children's Act 1989, the welfare report. CAFCASS also took over the role of the Official Solicitor in representing children party to proceedings, as Legal Guardians, in mainly public and in some private law cases.
 
In private law, it is time to give up on Section 7 of the Children’s Act 1989 and abolish CAFCASS along with it. In private law proceedings, if there are matters raised which are sufficiently serious to warrant a welfare investigation, the case should be moved to public law with the local authority to carry out the investigation. The welfare investigation should then be made to the timescales and standards of a S.47 and Core Assessment (35 days). As an alternative, independent experts could be jointly instructed and paid for by parties or, when appropriate, through Legal Aid. It is a measure of the inadequacy of CAFCASS that in the vast majority of cases it would work out cheaper to pay £2,000 for a reliable report in four weeks than wait six to nine months for CAFCASS to produce an inadequate one. 
 
In public law, children would be better represented by people who know and understand them and can express their views, preferably drawn from their wider family or community and if necessary from the voluntary sector. It does not require the inadequate practitioners from a state service.  
 
There is no need for CAFCASS at all. 

Why does this matter?

 

The Children’s Act 1989 is a widely admired piece of legislation which has been fatally flawed in private law proceedings by Section 7, the welfare report. Over the first ten years after the act into force the welfare report was provided by probation officers, little more than prison officers, with little, if any, experience of children and families. When coupled with the hard left politically correct stance of their union, the National Association of Probation Officers,  untold damage was done to children and families over the period.
 
The use of probation officers to provide welfare reports in children’s proceedings was replaced by the establishment of the Children and Family Court Advisory and Supervisory Service (CAFCASS) under Sections 11-17 of the Criminal Justice and Courts Services Act 2000. At the same time CAFCASS took over the role of the Official Solicitor in representing children party to proceedings in mainly public and some private law.
 

For the first few years from its inception CAFCASS was an unmitigated disaster leading to the sacking of the chief executive and the Lord Chancellor’s demand that the entire CAFCASS Board resign in 2003. Another three years of untold damage to children and families. Seven years later the majority of CAFCASS output is still assessed as inadequate (the lowest level of performance) by the inspection agency OfStEd since April 2007 as it was prior to then by Her Majesty's Inspector of Court Administration.
 

There is no effective complaints process for the tax payer, who pays in excess of £100,000,000 per annum for this avalanche of inadequacy only to have it imposed on him and his family by the unelected and unaccountable family justice system. There is not a single tax payer in receipt of this “service” who sees any value in it at all and most see only the damage done by it. 
 
Twenty years after  enactment of the Children's Act 1989 we have reached the level of “inadequate” in Section 7 welfare reporting.  It is breathtaking to consider, what must now be, the millions of children damaged by the inability  to properly implement this piece of legislation, it is time to give up. 
 
There were were forceful submissions in the last family justice review on the unsuitability of social workers to act as children’s Legal Guardians. The current situation is ludicrous in that inadequate social workers from CAFCASS review the work of equally, according to OfStEd, inadequate social workers from the Local Authorities whilst both follow the same government imperatives. 
 
It is a WIN WIN situation, huge amounts of money will be saved and the public will be grateful to see the back of a failed and inadequate service. Some of these savings could be diverted to the better management, training and monitoring of local authority children's services.
 
The underlying principle of the Children's Act 1989 is that there must be minimum state intervention in private family life. It has been totally disregarded by the family justice system whose inadequate practitioners have imposed its inadequate solutions on families for over a generation. The Children's Act was introduced by  the same administration who got the state out of private economic life and breathed life back into the economy. The government should now get the state, in the form of the family justice system and its inadequate practitioners, out of private family life and breathe life back into the family.
 
Alastair Patterson
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