Not Fit for Purpose

 

 

The Government’s response is not based on the welfare of the child, but rather upon the desires of those who feel they should have a child as of right, without the need for a father.

John Sentamu, Archbishop of York (Hansard, 2007b)

 

 

Far from endorsing fathers’ roles in their children’s lives, Labour’s perverse goal was to make it even less likely that children would be raised by two parents.  Amongst the controversial innovations of the Human Fertilisation and Embryology Act was the removal from legislation concerning IVF treatment of ‘the need for a father’.  Though it was to be of limited legal significance, the proposal would become deeply symbolic of the Government’s attitude.  Previously it had been a requirement for clinics offering IVF to take this need into account.  The provision in the legislation was not working well, but rather than explore ways to implement it more effectively Labour’s Health Minister, Caroline Flint, chose to reject so quaint a requirement entirely,

We are minded to retain a duty in terms of the welfare of the child being taken into account, but we are thinking there is probably less of a case for a retention in law to the reference for a father.

What’s important is that the children are going to be, as far as we know, part of a loving family.  We are considering whether the need for a father is something we need to have (Flint, 2006).

Under the new Act all references in the existing legislation to the need of a child for its father were erased.  This contradicted Government-sponsored research such as the Young Fathers Project which had been initiated by the abandoned Home Office Family Policy Unit to tackle the problem of uninvolved teenage fathers, and the marginalisation and demonising of such fathers (Lowe & Mordaunt, 2004).  The Project had been designed to challenge the often prejudicial attitudes of (mostly female) professionals as well as to integrate fathers with their new families.  Similarly, the SureStart programme, widely dismissed as a strategy to get single mothers back to work, sought to involve fathers more closely in their young families, recognising that publicly provided services were insensitive to the needs of men, and quoting American research showing ‘interventions involving fathers appear to be significantly more effective than interventions focusing on mothers only’ (Lloyd, O’Brien, & Lewis, 2003).  There had been considerable emphasis in Government policy on the need to engage young fathers, which is why it was perplexing that some ministers were keen to eliminate them.  Education Minister Lord Adonis sought to justify the new legislation, replacing the presence of a father with a euphemism,

Existing research suggests that while stable, two-parent families tend to be associated with favourable outcomes for children, factors such as work status, income, and family conflict and disharmony, are likely to be more influential than family structure alone.

The House of Commons Education and Skills Committee took oral evidence[1] on this topic from four carefully selected expert witnesses[2] in July 2006.  The witnesses agreed, contrary to the huge body of evidence, that ‘family structure’ was a relatively unimportant factor in predicting children’s outcomes compared with other factors such as poverty (Hansard, 2006d).  The Church of England, which had been mute for decades on the issues of family breakdown and fatherlessness, responded strongly:

We believe it is wrong to remove the requirement to take account of ‘the need of that child for a father’ from the Bill as it sends an entirely erroneous signal about the significance of fathers especially at a time when many children and families are suffering because of lack of attention and care from absent fathers (Butler, 2007).

The Church acknowledged the desire to avoid causing offence to homosexuals (the main charge against the old rules) but condemned the non sequitur which assumed parity between offering an unfortunate child a home and commissioning a new child through IVF,

Bringing the care of an adoptive home to a needy child is a wholly different circumstance to deciding in advance to use IVF technology to bring into the world a child who will, ‘by design’, never have a father (or mother, in the case of gay men commissioning a child by IVF surrogacy).  It sends the signal that everyone has a right to a child and this ‘right’ over-rules consideration of that child’s welfare… If discrimination is the issue here, we feel the greater discrimination is in ensuring that a child will never have any chance of knowing a father.

Although the Roman Catholic Church had effectively gagged itself on all issues involving children because of its dismal record on child abuse, its response was simple and forceful:

Deliberately to sanction the conception of children who will be deprived of both a genetic and a social father is to place the wishes of adults above the human rights of the child (Catholic Bishops’ Conference of England and Wales and Linacre Centre for Healthcare Ethics, 2007).

An alliance of MPs gathered to oppose the Bill; 43, including 11 Labour MPs, signed a Commons motion condemning the Government’s reforms as ‘profoundly misinformed’ and insisting that they ‘clearly undermine the best interests of the child’.  Heywood and Middleton MP Jim Dobbin, said a ‘significant number’ of Labour MPs was prepared to back amendments opposing central planks of the Bill (Chapman, 2007b); Geraldine Smith, Labour MP for Morecambe, warned,

We could have quite large Labour rebellions on various aspects of this Bill.  These decisions have profound ethical implications.  To scrap the requirement to consider a child’s need for a father sends entirely the wrong signal to society.  Of course there are great single parents, but most people would agree that the ideal situation for a child is to have two parents and I would go so far as to say a male and a female.  As for putting two women down as ‘parent one’ and ‘parent two’ on a birth certificate, that’s going to be really confusing for a child who has actually been born as a result of sperm donation.  The state is actually going to be colluding in lying to children about their real origins.

Discussion of the Human Fertilisation and Embryology Bill began in the House of Lords in November; the Archbishop of York, John Sentamu, was vigorous in his condemnation: the Bill, he said, proposed ‘the removal, by design, of the father of the child’, it

seeks to place ‘the welfare and needs of the child’ against a child’s need for a father.  My Lords, I am bound to ask since when did these become competing requirements?  Is it not self-evident that ‘the welfare and needs of a child’ are enhanced and met when there is a father present as against there being no father at all?

Of the Government’s first argument, that retaining ‘the need for a father’ was offensive and discriminatory, the Archbishop said,

If we are to be serious about the paramount place of child welfare in this Bill, then this means such welfare taking precedence over the desires of those who would want a child as of right.  My Lords, I consider that the child’s right not to be deliberately deprived of having a father is greater than any right to ‘commission’ a child by IVF.

Of the second argument, that there was no difference between allowing gay and lesbian couples to adopt and allowing them to ‘commission’ a child, he said,

Bringing the care of an adoptive home to a needy child is a wholly different circumstance to deciding in advance to use IVF technology to bring into the world a child who will, ‘by design’, never have a father.

He concluded,

There is an unhealthy seam of rampant individualism at the heart of this Bill, rooted in a consumerist mentality where the science that allows something to happen is transformed into the right to have it.  The ‘cogito ergo sum’ of Descartes – I think therefore I am – becomes the consumerist mantra – I shop therefore I am: ‘Tesco ergo sum’.

In the event the promised Labour rebellion was a damp squib, Labour MPs decided the Bill wasn’t ‘profoundly misinformed’ after all, and only the Roman Catholic transport minister, Ruth Kelly, resigned (ironically to ‘spend more time with her family’); the Bill became law.  The new Act placed the selfish desires and ‘rights’ of adults above the best interests of children, its promoters sought to discredit opponents by branding them homophobes; it was a truly despicable episode.  Objective evaluations of the outcomes for children of same-sex relationships are rare: this is controversial territory and it has become dangerous to question the wisdom of this social experiment.  The evidence, however, is that children suffer on many measures compared with children brought up by their biological parents and are less likely to succeed well as adults; the children of lesbian relationships do significantly less well than the children of male homosexual partners (Regnerus, 2012).  The first baby to have two mothers listed on her birth certificate was Lily-May Woods; her biological mother was Natalie Woods, a lesbian, gay, bisexual and transgender activist, who had IVF using sperm from an anonymous donor; in the box usually listing the father was the name of Betty Knowles, Woods’ partner.  Lily-May had a biological father, but she was never to know who he was: in the name of ‘diversity’ and political correctness the self-centred wishes of her mother and her partner had been allowed to trump her best interests.

In April 2008 one of the most senior family judges, Sir Paul Coleridge, described the family court system to members of the family lawyers association Resolution,

It is a never ending carnival of human misery.  A ceaseless river of human distress… The effects of family breakdown on the life of the nation and ordinary people in this country will, within the next 20 years be as marked and as destructive as the effects of global warming.  We are experiencing a period of family meltdown whose effects will be as catastrophic as the meltdown of the ice caps (Coleridge, 2008).

In a further speech he emphasised the public nature of the crisis and the need to return to marriage as a gold standard,

In the end it is the behaviour of individuals which has driven us here and it is only changes in behaviour which can make a radical difference and ease the burden on the services.

The fundamental change in individual attitude and behaviour that is required is in our assumption that the way in which we conduct our private lives in relation to both the production and parenting of children or the break-up a parental relationship is a private matter which only affects the individuals directly concerned.

No, it is not.  It is a public matter; of real public interest and real public concern.

…the reaffirmation of marriage as the gold standard would be a start, with all its faults.  Marriage is by no means perfect or the only way or only structure for living with a partner but statistically it has proved to be the most enduring and, statistically, the children of such relationships perform the best.  That is simple provable fact which has to be faced however unpalatable to its detractors.  Support for marriage therefore makes pragmatic common sense because it is demonstrably in the public interest and ultimately saves money (like eating healthily!).  That too can properly engage government (Coleridge, 2009).

It is a measure of how far our society has turned its back on marriage as a gold standard that Coleridge’s outspoken support for marriage led to him being hounded out of office, and he announced his intention to resign in April 2014 to dedicate more of his time to his Marriage Foundation, citing lack of support from his colleagues as a determinative factor (Bingham, 2013).

By 2009 applications to the family courts had risen to 95,000 and the system was estimated to cost £800 million; some cases were dragging on for 8 or 9 years with no end in sight.  Shortly before Nicholas Wall became President of the Family Division he delivered one of the most outspoken speeches ever made by a family judge.  The family justice system was, he said, in a ‘parlous state’;

If the Family Justice System is not properly funded it will implode, and it is the children who will suffer most.  It really is welfare or farewell (Wall, 2009).

The themes hiding behind the clumsy word play were familiar: the system lacked ‘resources’, i.e. money – pump in more cash and all will be well; control of the system’s funding should be handed to the judiciary.  In July 2010 Wall sent a letter to the Legal Services Commission expressing his concern that the reallocation of legal aid contracts due in October – which would have reduced the number of firms providing family work from 2,400 to 1,300 – would lead to the loss of competent and experienced lawyers, while inexperienced firms would take over much of their work, leading to huge delays and an increase in litigants forced to represent themselves,

if we end up with an unworkable system, or a system operated by those who are inexperienced and/or do not know fully what they are doing, everyone will lose out.  The principal losers, of course, will be those whom the system is most designed to protect, namely vulnerable families and children.  Cases will take longer, there will be many more litigants in person, and there is a grave danger that the system will simply implode.

The previous week representatives from the Association of Lawyers for Children, Piers Pressdee and Alan Bean, had conveyed similar fears in a letter to the Times,

Inexcusably, many of the most experienced children lawyers in the country are set to be excluded from the system just when the need for them is greatest.  Unless the Government steps in, from October the family justice system, already creaking from years of under-investment, will officially be in complete meltdown.

Addressing the judiciary at the Lord Mayor’s dinner, the Lord Chief Justice, Lord Judge, questioned the foundations of the system,

Does our traditional, adversarial system continue to provide the best means of enabling judges to decide those desperately sensitive cases involving the future of children?  We really must consider whether these processes are the best in the year 2010 (Judge, 2010).

In December a threat by the CAFCASS union, NAPO, to strike over soaring workloads and low morale was narrowly avoided only through a £1.6 million emergency cash injection.  Cases were being apportioned 25 hours, though many could take twice that; the average caseload for an FCA increased from 12 in 2008 to 35 by October 2010.[3]  NAPO produced a press release followed by a parliamentary briefing paper claiming that CAFCASS was in meltdown, and pointing out that the head office budget had increased threefold while delays lengthened and staff morale collapsed (NAPO, 2010).  Chief Executive Anthony Douglas dismissed the concerns, ‘All public bodies have to use taxpayer resources wisely and as our figures show our efforts to tackle the increase in cases are yielding results’ (Local Government Lawyer, 2010).  The response of management was to suppress expressions of discontent and to bully employees into compliance (NAPO, 2009); the comments of a former employee writing on an internet forum are enlightening,

It was my experience that it was a ‘bullying’ / seriously over-bureaucratic / unwilling to listen / unwilling to be challenged and generally unfit for purpose organisation that certainly didn’t put children first and often certainly did not do right by many parents.

…the centralised governance of the Organisation was impenetrable – what Douglas and his cohorts said just went regardless of whether it made any professional sense.

Douglas really should resign or be sacked – he refuses to accept the depths of the problems and that in itself is unhelpful.  The Unions and Professional Associations appear united in sharing concerns – is everyone wrong but Anthony Douglas? – I think not (Rupert_M, 2010).

The then President of the Family Division, Sir Mark Potter, was forced to introduce emergency measures to limit the role played by CAFCASS and give the service an opportunity to clear its backlog, cutting the service provided below anything which could optimistically be called a bare minimum.  In May 2010 the Official Solicitor contacted family lawyers to announce his staff were unable to act as guardians ad litem in new children’s cases due to the relentless rise in demand, advising that all other options should be exhausted first and his staff be used only as a last resort.  New cases were accepted only once an existing one had completed.

Campaigners and commentators alike have run out of vocabulary to describe a system which seems to have infinite capacity to deteriorate.  Following the Laming inquiry into the death of Victoria Climbié and consequent introduction of the Every Child Matters agenda the emphasis became to ensure that the impact of human fallibility and incompetence amongst social workers – including CAFCASS – was minimised.  One effect of this had been to introduce a cut-down pro forma for CAFCASS to follow in all cases instead of the standard welfare reports which were taking a year or more to deliver.  Almost immediately this was criticised for being too restrictive to cover all eventualities, for failing to promote rigorous analysis and for encouraging instead a ‘stream of consciousness report’ which was superficial and hard to follow.  Most worryingly, it jettisoned the welfare checklist which CAFCASS was statutorily obliged to follow in all cases and which had formed the basis of complete reports.  This represented an extraordinary dereliction of the duty imposed by Parliament.

In June 2010 CAFCASS reported an increase in private law cases of 30% over the previous 12 months, and an increase of 46.1% in care applications within nine months.  When the Coalition Government came to power 500 children a month were being taken into care; by 2012 this had risen to 1,300.  The fallout from the Baby P case had resulted in a huge increase in referrals from social workers, desperate not to be the next Maria Ward and equally eager to meet adoption targets.  At the same time, due to pressure on its budget, CAFCASS had reduced the number of practitioners it employed by up to 50% in some areas; a budget crisis led to the cutting of a further 70 jobs in September.  To reduce costs further, case-load was transferred to entirely unqualified and unaccountable charities.  CAFCASS claimed this was only temporary, though it continues.  An on-going recruitment crisis led to what many argued was the appointment of an even more inadequately trained and inexperienced workforce.  There was evidence that unqualified trainees were being required to produce welfare reports, and that former staff were being pulled out of retirement.  CAFCASS introduced a system of ‘duty allocation’ whereby cases were allocated on an interim basis to a ‘duty’ Family Court Advisor in order to reduce the number of unallocated cases; these peaked at 1,000 in August 2009 and fell to 150 by September 2010 (National Audit Office, 2010b).  Massaging the figures in this way looks better on paper, but allocating a case is a long way from resolving it satisfactorily.  Duty allocation was widely unpopular because it guaranteed little work would be done once a case had been allocated.

In July a report by the National Audit Office censured CAFCASS for failing to tackle organisational problems (National Audit Office, 2010b).  Had it done so it might have been in a better position to meet the sudden rise in demand.  The report also highlighted poor morale and high rates of sickness and absence.  MPs demanded a full enquiry into the ‘endemic problems’ at CAFCASS.  The response from Anthony Douglas was characteristically complacent,

I am pleased that the NAO has recognised the steps that we have taken to improve our ability to provide a service to so many more children than ever before.

A large group of interested bodies including lawyers, social workers and adoption agencies had come together to form the Interdisciplinary Alliance for Children (IAC),[4] and following the NAO report they produced an unprecedented joint position statement expressing grave concerns about CAFCASS and questioning whether its model of service delivery was the most effective at securing beneficial outcomes for children or the most cost-effective (IAC, 2010).  Concerns included the unacceptable levels of backlog and delay; the failure to comply with the Service’s statutory obligations due to a revision of priorities in line with operational need rather than children’s welfare; an emergency footing intended to be temporary but which had lasted over a year, under which CAFCASS was offering only a minimum service; increased bureaucracy; the inadequacy of the OFSTED inspection framework; and the assumption that what is best for CAFCASS will be best for children.  Yet again Anthony Douglas dismissed their anxieties.

In August the charity Barnardo’s warned that children were having to wait an average of 57 weeks for county courts to make care or supervision orders; in London the average was 65 weeks.  By the end of 2009, the charity said, there were 50% more unresolved cases than a year before.  In September the House of Commons Public Accounts Committee finally launched an enquiry into CAFCASS which fell a long way short of the detailed investigation MPs had demanded and took oral evidence from just four witnesses, Anthony Douglas, David Bell, Permanent Secretary at the Department for Education, Nicholas Wall, President of the Family Division, and Mark Hedley, another family judge; the Committee was chaired by Margaret Hodge who said,

I will want to understand why, some seven years after it was formed, the organisation lacked the managerial competence to deliver an effective service.  The case of Baby P highlighted serious underlying issues and we will want to understand whether backlogs and delays were generated solely as a consequence or could have been avoided with improved management practice (Pemberton, 2010a).

Opening the proceedings she challenged Douglas and David Bell,

If you look at staff sickness and staff morale issues, they are dreadful.  If you look at the inaccuracy of data, it is shocking… If you look at the Ofsted inspections, eight out of 10 failed… If you look at overspending…we have had to bail them out.  All that reads to me as it is one of the most shocking reports that I have read – of an organisation that is not fit for purpose; and you are responsible for it (Public Accounts Committee, 2010).

Dismissing David Bell’s attempts to blame the situation on the Baby P case, she continued,

Find me one indicator which demonstrates that CAFCASS is providing an efficient, effective, value-for-money service to the courts, to you as the commissioning Department, to the public and to the taxpayer.  There is not one indicator.  You can come here and say, ‘Of course, since they did the report, it’s all got a bit better’, but actually this is eight years of failure to perform.

Hodge then raised the issue of ‘duty allocation’ and made the vital distinction between allocating cases and resolving them,

Hodge: So you allocate them; you have too big a work load; and you don’t get on with the work.  So, from the point of view of the kids, [58 weeks] is an average – over a year in the life of a child on average, before you have provided the reports that will start enabling the courts to take a decision on the child’s future.  That’s dreadful.

Douglas: But the context of that is this time scale reflects the residual group of the most complicated and intractable private law cases.

Hodge: No, it’s an average.  The average is 58 weeks. Some will be undoubtedly three or four years.

Pressed by committee member Stephen Barclay MP on what duty allocation actually entailed, Douglas evaded the question.  Asked whether he thought CAFCASS provided a world-class service, as he had claimed in the 2004/05 accounts, Douglas answered that he thought it did, justifying his response by claiming that CAFCASS saved lives and that it had intervened in a million cases: a quantitative but not qualitative measure.  In November the Committee produced its report, dramatically declaring CAFCASS ‘not fit for purpose’: CAFCASS had failed to foresee the rise in demand and had no contingency measures in place, it took far too long to introduce a performance management framework and was suffering from under-performing staff, low morale and unacceptable levels of sickness absence.  Staff did not comply with new requirements and this undermined efforts to improve performance.  The poor quality of reports from social workers was putting additional pressure on CAFCASS staff who were having to redo the work.

The Committee recommended CAFCASS introduce new action, management and contingency plans; none of its recommendations seemed likely to challenge the steadfast resistance of the organisation to any improvement during its 10-year history.  NAPO responded that the last thing CAFCASS needed was yet more costly, top-heavy management; rather, there should be less bureaucracy and staff should be allowed to get on with their jobs,

It is the best interests of children that is the paramount consideration here, not the best interests of Cafcass the organisation.  Children’s voices are being silenced by the very agency that should be listening to them and ensuring that the court knows what is happening to them.  Above all we must preserve the important role that protects children, even if we have to create a new way of delivering it.

Astonishingly, despite the rising demand for its services and the increasing pressure on staff, CAFCASS continued the campaign against self-employed guardians cited in Chapter Eleven.  By 2013 their numbers had fallen from 750 to 130.  The majority of those remaining were no longer being allocated new cases and it was apparent that CAFCASS intended to dispense entirely with the services of ‘some of the most skilled and respected practitioners in daily practice in family court social work’ (Greenhalgh, 2013).

 

Works Cited

Bingham, J. (2013, November 29). Judge Sir Paul Coleridge quit because of lack of ‘support’ over marriage stance. Daily Telegraph.

Butler, T. (2007). Response from Church of England’s Mission and Public Affairs Council to the Call for Evidence from the Joint Committee on the Draft Human Tissue and Embryos Bill. Church of England.

Catholic Bishops’ Conference of England and Wales and Linacre Centre for Healthcare Ethics. (2007). Joint Response to the Human Tissue and Embryos (Draft) Bill.

Chapman, J. (2007b, November 8). Anger over plans to cut fathers out of fertility laws. Daily Mail.

Coleridge, P. (2008). Family Life – Family Justice – Fairness. Resolution National Conference.

Coleridge, P. (2009). Family Holiday Association, House of Commons. London.

Flint, C. (2006, July 12). Evidence given to Commons Science and Technology Committee.

Greenhalgh, P. (2013). CAFCASS use of its self-employed workforce: information from Nagalro members who are CAFCASS SECs. Nagalro.

Hansard. (2006d, July 24).

Hansard. (2007b, November 19). House of Lords debate on Human Fertilisation and Embryology Bill.

IAC. (2010). Delivery of court services to children in family proceedings: Joint position statement – Interdisciplinary Alliance for Children.

Judge, I. (2010). Lord Mayor’s dinner for the judiciary.

Lloyd, N., O’Brien, M., & Lewis, C. (2003). Fathers in Sure Start local programmes. DfES.

Local Government Lawyer. (2010, February 22). Union and Cafcass renew war of words over workloads, head office costs. Local Government Lawyer.

Lowe, K., & Mordaunt, E. (2004). The Young Fathers Project: Evaluation Report. Trust for the Study of Adolescence.

NAPO. (2009). Cafcass in Crisis, A parliamentary briefing from Napo the Trade Union and Professional Association for Family Court Staff.

NAPO. (2010). Cafcass in Meltdown: A briefing for the Family Court Unions’ Parliamentary Group from Napo the Professional Association and Trade Union for Family Court and Probation Staff.

National Audit Office. (2010b). Cafcass’s response to increased demand for its services.

Pemberton, C. (2010a, July 28). Cafcass efficiency questioned by National Audit Office. Community Care.

Public Accounts Committee. (2010, September 7). Uncorrected transcript of oral evidence to be published as HC 439-I, CAFCASS’s Response to Increased Demand for its Services.

Regnerus, M. (2012, July). How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study. Social Science Research, 41, 752 – 770.

Rupert_M. (2010, July 28). CareSpace Forum. Retrieved from CommunityCare.co.uk.

Wall, N. (2009). Justice for children: welfare or farewell?, keynote address . national conference of the Association of Lawyers for Children.


[1] Oral evidence taken before the Education and Skills Committee on Wednesday 12th July 2006

[2] These experts were: Professor Bryan Rodgers, of the National Centre for Epidemiology and Population Health, Australian National University, Canberra; Professor Judy Dunn, FBA Research Professor of Social, Genetic and Development at the Psychiatry Centre, King’s College London; Dr Leon Feinstein, Director of the Centre for Research on the Wider Benefits of Learning, Institute of Education and Dr Amanda Wade, Lecturer in Social Work at the University of Sheffield.

[3] Evidence given by Anthony Douglas to the Public Accounts Committee, 7th September 2010

[4] The Association of Lawyers for Children (ALC), the Professional Association for Family Court Advisers and Independent Social Work Practitioners (NAGALRO), the Family Law Bar Association (FLBA), The Aire Centre, Family Law and European Convention on Human Rights, the British Association of Adoption and Fostering (BAAF), the British Association of Social Workers (BASW), Adoption UK, the Children’s Rights Alliance for England (CRAE), the Office of the Commissioner for Children – England, The Law Society – Children and Family Sub-Committees, the National Youth Advocacy Service (NYAS), The Catholic Children’s Society (Westminster), Dr Danya Glaser, Great Ormond Street Hospital for Children, NHS Trust (media rights), Resolution (formerly, Solicitor’s Family Law Association), the Royal College of Paediatrics and Child Health, VOICE – Children’s Advocacy, Voice for the child in care, Women’s Aid Federation – England and Liz Walsh – Editor, Family Law.

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