Shared Parenting Information Group (SPIG) UK
- promoting responsible shared parenting after separation and divorce -
Future Organisation of Court Welfare Services
SPIG's response to the Consultation Paper:
Support Services in Family Proceedings
-Future Organisation of Court Welfare Services
Department of Health, Home Office, Lord Chancellor's Department, Welsh Office
in July 1998,
but not received from DoH Publications until 12 October 1998
Whilst welcoming the Government's review of the Support Services in Family Proceedings, we are concerned about the reasons behind it, the way it is being done, and the rose-tinted view the consultation paper takes of current services.
Being primarily concerned with private law proceedings, our experiences of the support services have largely been restricted to family court welfare officers, but we have met several guardian ad litems and observed cases where the Official Solicitor has been involved.
It appears to us that the review has been initiated by a desire to save money rather than address the fundamental weaknesses of the current system. We are concerned that the working group did not include any organisation representing the principal users of the services (parents and children) and are surprised that the paper speaks of the 'high regard with which current services are held' - a comment which ignores the many reports which have been highly critical of the service provided by family court welfare officers and the feelings of many of their clients (which are summarised in Appendix 'A' to this response).
We are also concerned that the paper, whilst recording the 'potentially serious consequences for the child's future' in public law cases, does not recognise that private law cases can have just as serious consequences - given the number of children affected and the fact that 50% of them are stripped of all contact with one half of their wider family after family breakdown. This is reflected in the time allocated to private and public law cases: the paper records in paras 1.13 - 1.14 that 700 court welfare officers produced 36,100 reports in 1997 - an average of 52 per annum, whereas paras 1.23 and 1.25 show that 1069 Guardians ad Litems were involved in 13,200 proceedings annually - an average of only 12 per annum.
We would welcome the opportunity to be involved in a more detailed review of the shortcomings of the existing services in order to ensure that the new service gets off to the best possible start.
Finally we wish to record our dismay that yet again the DoH Publications section have denied us the opportunity to give proper consideration to a consultation paper. Despite repeated requests, our copy of this paper was only received four weeks before the closing date for comments, on the day before the writer took his annual two weeks holiday.
Responses to Key Questions for Consultation
Chapter 3 - A New Service
Q1. Are the overall aims of a unified service acceptable? If not, in what ways should they be amended?
We agree with the aims stated in s 3.1:
- to provide professional advice to courts on applications in family proceedings,
- to promote the welfare of children before the courts, and
- to provide other advice and support services for families involved in such proceedings.
Additionally we would like to see the advice and support services made available to families both before they start proceedings in court, and after such proceedings are finished, as at present there appears to be a funding problem with such work if no proceedings are in progress.
We welcome the desire to comply with the UN Convention on the Rights of the Child, but would stress that the whole convention needs to be adopted - not just Article 12.
We are concerned about the quality of existing services and welcome the desire for the new service to provide 'a high quality service operating to the best professional standards', but regret that there appears to be no intention to include child psychologists within this service in order to provide this high quality service.
Q2. Are the proposed functions of a new unified service appropriate? If not, in what ways should they be changed?
Whilst appreciating the need to retain the distinction between private law and public law work, we would like to see Court Welfare Officers trained to the same level as Guardian ad Litems, or for Guardian ad Litems to be assigned to the more difficult private law cases such as those where contact is obstructed or children appear to be alienated by one parent.
Q3. What should be the role of the Official Solicitor in relation to children's cases?
We do not see the need for the Official Solicitor to be included in the unified service. We have not been encouraged by his performance in private law cases and would prefer to see his functions carried out by Guardian ad Litems.
Q4. Which model for a new organisation appears most satisfactory and why? Are there other models which should also be considered? If so, what are they and why might they be preferable?
We would support any model which would provide and monitor a high quality service supported by national standards. Model B appears to have some advantages in this area.
Q5. Does the balance of advantage lie with close or relatively close Ministerial supervision of a new unified service or should it have a constitutional position at arm's length to central Government? Would it be appropriate for the new service to be part of an existing organisation? If so, which one?
In order to show the government's commitment to the new service, it must have close Ministerial supervision.
For credibility, the new service must not be part of the Probation Service.
Q6. Is a regional structure for a new unified service necessary? If not, what alternative might be preferable? If a regional structure is desirable, what should be the number of regions and their catchment areas? How important is it that a regional structure achieves co-terminosity with other specific services?
Some form of regional structure is necessary, and as the work is closely linked with courts the court circuit structure is probably appropriate. However there needs to be close monitoring of the effectiveness of the work in order to avoid the vagaries of the current system, where neighbouring courts in different circuits produce very different outcomes.
Q7. Is the suggested approach to independence satisfactory? Should professional recommendations of practitioners to court at final hearing be given a special legal status similar to that of an approved social worker under mental health legislation? If so, would exceptions be needed for certain categories of staff within the service such as trainees? Would there be advantage in creating an independent statutory office for the head of the service?
For court welfare officers, greater attention will need to be given to their qualifications and training before their recommendations can be given special status, and they will have to be prepared for more rigorous cross examination in court.
Proper monitoring and complaints procedures will need to be instituted.
Q8. Although the functions and organisation of a new unified service need to be confirmed and taken into account, which central Government Department is the most appropriate to have the policy lead for such a service - and why?
The Lord Chancellor's Department probably has the necessary expertise, but the service needs to avoid being seen a being the agents of a system that seeks to marginalise one parent. Based on the guidance documents produced by the Department of Health for the Children Act 1989, they would appear to be a more appropriate body.
Q9. Do you agree with the proposals concerning the purchase of services?
We have no objection to the purchase of services so long as the criteria are based on quality and professional qualifications rather than mere cost. It is to be hoped that good use will be made of child psychologists by this means.
Q10. Do you agree with the proposal that a new unified service should have discretion to engage both employed and self-employed persons to the organisation?
Yes, so long as there is a system for verifying that they are both receiving an appropriate level of in-service training.
Q11. It is proposed that recruitment and career structure issues, including remuneration levels, should be determined in the run-up to establishing a new unified service, and thereafter within the service rather than be the subject of detailed consultation at the present time. Is this approach satisfactory?
There is a clear need to raise standards (at least for Court Welfare Officers) and this needs to be addressed not least in levels of remuneration.
Q12. Should the opportunity be taken within a new unified service to set out the powers and duties of practitioners under one generic title? If so, what generic term might be appropriate? If not, should the particular functions of the Family Court Welfare Officer and Guardian ad litem continue to be known by these titles within the unified service? What should be the name of any unified service?
We would suggest that the current titles be retained, if only to distinguish the qualifications and training of the staff. However, as mentioned above, we would like to see Guardian ad Litems assigned to the more intractable private law cases where Family Court Welfare Officers do not currently have a very good track record.
Q13. Are the proposals about quality assurance, standards and inspection appropriate?
We agree with the proposals provided they embrace new and stringent criteria.
Q14. Within the proposed overall structure of a new unified service, is there a role for an advisory committee? If so, what might its functions cover and membership include? If an advisory committee structure is felt to be desirable, should its remit be placed on a statutory footing by being set within a regulatory framework?
We would see a clear role for separate central advisory committees for public and private law work provided they contained lay representatives as well as members of groups representing the parents and children using the services.
Q15. What arrangements for the provision of a unified service would best fit developments in Wales, including plans to establish the National Assembly?
Initially this may best be administered by the central body, but arrangements must be made for devolving the work to an appropriate Welsh body.
Chapter 4 - The representation of children in family proceedings
Q16. Within a new unified service, should limited discretion be introduced as to the use of legal representation for children in public law cases? If it is, what should be the scope of any flexibility and who should exercise it?
We do not have sufficient experience to comment in this area.
Q17. Within a new unified service, are there any types of private law cases in which a wider range of welfare duties should be undertaken by caseworkers? In what circumstances might it be appropriate for a child to be joined as a party to private law proceedings and entitled to separate legal representation? Should this be possible in the family proceedings courts as well as in the higher courts?
We would like to see much greater use of Family Assistance Orders to help overcome contact difficulties, but these require a greater willingness of caseworkers to work at weekends - when the majority of contact occurs.
We hear of too many cases where children are joined as parties merely to take up the battles of the residential parent. Joining children as parties can cause great damage and must only occur in truly exceptional cases - which probably require the involvement of a senior Guardian ad Litem and are preferably heard by senior judiciary in the High Court.
Q18. Should the Government implement Section 64 of the Family Law Act 1996? If so, should this proceed independently of the Government's consideration of proposals to set up a unified court welfare service? Should Rules define the criteria for separate representation by a court welfare officer, by a legal representative and by both?
We would be loathe to see this section implemented.
Q19. Is the suggested range of functions for an in-house legal capacity within a new, integrated court welfare service appropriate?
Although we welcome the idea of using specialist family law practitioners, we do not feel that the case for an in-house legal capacity has been made.
Q20. In what circumstances, if at all, would it be appropriate for children to be represented by in-house lawyers from the service?
Where children are represented, they need access to lawyers who are independent of their parents, but as noted above we do not feel that the case for an in-house legal capacity has been made.
Q21. In cases where external legal representation is needed, should children always be represented by solicitors and/or barristers who are able to demonstrate specialist knowledge and experience through some form of accreditation similar to that of the Law Society's Children Panel? Are the proposals likely to ensure improved control of legal costs and consistent quality of legal representation?
Where children are represented they need access to lawyers with specialist knowledge and experience who are independent of their parents. Our understanding is that the Law Society's Children Panel is primarily for public law cases, so some other form of accreditation may be required for private law lawyers. It is difficult to see how any form of accreditation can improve control of legal costs - unless there are published 'turn-key' fees for various types of action.
Chapter 5 - Current costs and future funding
Q22. Is the approach to clarifying future funding details satisfactory? Should a unified service have powers to charge fees and/or recover costs from parties in litigation?
No, it is not satisfactory.
A unified service must not be allowed to recover costs from the parties - they should be providing a public service for the protection of our children, not making profit out of their misfortune.
The Shared Parenting Information Group (SPIG) was formed to encourage and promote the continuation of parenting after family breakdown. We believe that it is of vital importance that wherever possible both parents should continue to fulfil their responsibilities by retaining a strong positive parenting role in their children's lives, with the children actually spending substantial amounts of time living with each parent.
Shared Parenting offers children the opportunity to build up and maintain meaningful relationships with both their parents, and there are a wide variety of parenting arrangements to suit a range of situations, providing for time-splits from 30/70 to 50/50. This overcomes the widespread dissatisfaction of children and parents with the artificiality of traditional contact arrangements - which often relegate one parent to the role of a distant and infrequent visitor.
SPIG is a 'not for profit' organisation and makes its resources freely available via its website - which has received international acclaim and currently attracts around 1,000 visitors per week. The website contains a wealth of information ranging from guidelines for separating parents to sample residence and contact arrangements and Parenting Plans. There are also book reviews and references to more than 350 articles.
Criticisms of the existing Family Court Welfare Service
Complaints about CWOs
We value the work of the Court Welfare Service and those staff who are dedicated to their role and who work in a professional way and provide an excellent service.
The main criticisms of the existing service stem from its connection with the Probation Service. In the past this has added a stigma to separation and divorce by requiring parents to attend interviews in the same buildings as people with offending behaviour. Another problem has been the policy of transferring staff from probation work to family court work and back without any regard to their skills or aptitude for the work. Thus on the one hand we have seen welfare officers who have really been making an impact on family work, forced to return to probation work, and on the other hand we have seen those who are clearly unsuited to family work do much damage in their 'tour of duty'.
From the complaints we receive it would appear that a significant number of officers are unsuited to their work and that they:
- fail to treat both parents EQUALLY
- fail to identify the real ISSUES
- fail to identify or explore the OPTIONS and their LIKELY EFFECTS
- are seen as AGENTS of a SYSTEM which seeks to MARGINALISE one parent
- exhibit PREJUDICE
- adhere to STEREOTYPES
- make VALUE JUDGEMENTS
- fail to treat each family INDIVIDUALLY
- try to impose STANDARD SOLUTIONS which have failed the test of time
- are RESISTANT to the concept of shared parenting post separation
- have strange ideas about STABILITY
- fail to DISTINGUISH between FACT and OPINION - particularly whose opinion
- reiterate the LANGUAGE of affidavits
- place undue reliance on the STATUS QUO
- are OUT OF TOUCH with current research
- take too much TIME taken to prepare the report - time in which there may be no contact
- do not operate an adequate COMPLAINTS PROCEDURE
Different value bases
The problems we repeatedly meet are that parents feel they are not treated equally - something which Adrian James refers to in his book 'Court Welfare Work - research, practice and development'. It seems that different value bases are employed for residential and non-residential parents and this has the effect of reinforcing rather than defusing the adversarial nature of the court hearings.
For example, the residential parent is frequently portrayed as:
whilst the other parent is portrayed as:
- having a positive attitude to contact - (despite moving 200 miles away !)
By comparison the reports by social workers and Guardian ad Litems are likely to be considerably more even handed and may contain supportive comments that the parents:
- self opinionated
- unable to view matters rationally
thus providing a much better base for post-separation parenting.
- "... complement each other"
- "... afford the child appropriate care and protection"
- "... are totally committed to the child's well being"
- "... handled the child appropriately and lovingly"
Last updated - 13 November 1998
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