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Children and Families Act 2014 Committee

Corrected oral evidence: Children and Families Act 2014

Monday 27 June 2022

3.10 pm


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Members present: Baroness Tyler of Enfield (The Chair); Lord Bach; Baroness Bertin; Baroness Blower; Lord Brownlow of Shurlock Row; Lord Cruddas; Baroness Lawrence of Clarendon; Baroness Massey of Darwen; Lord Mawson; Baroness Prashar; Lord Storey; Baroness Wyld.

Evidence Session No. 15              Heard in Public              Questions 139 - 151



I: Rt Hon Sir Andrew McFarlane, President of the Family Division and Chair of the Family Justice Council; Jacky Tiotto, Chief Executive, Cafcass; Steve Crocker OBE, President of the Association of Directors of Children’s Services.



  1. This is a corrected transcript of evidence taken in public and webcast on
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  3. Members and witnesses are asked to send corrections to the Clerk of the Committee within 14 days of receipt.



Examination of witnesses

Rt Hon Sir Andrew McFarlane, Jacky Tiotto and Steve Crocker OBE.

Q139     The Chair: Good afternoon, everyone. Welcome to this public session of the Children and Families Act 2014 Committee. I draw your attention to the fact that the session is being broadcast online and that a transcript will be taken.

It is no longer a formal interest, but I think it is appropriate to remind people that I was the chair of Cafcass and stepped down in 2018. That was quite a long time ago. An awful lot has happened, and the world has moved on since then, but I thought I should remind the committee of that.

We have a really important session in front of us this afternoon. It brings to a culmination our formal evidence gathering, hearing about the family justice system and about adoption. It is an opportunity for us to address some of the key and pressing issues the committee has heard about. We are absolutely delighted and feel ourselves very lucky to have such distinguished members of what we might call the three pillars of the family justice system here. Thank you so much for coming and for giving your time. Could I kick off, please, by asking you to introduce yourselves?

Sir Andrew McFarlane: I am the President of the Family Division. I have been a judge in the Family Division and the Court of Appeal for 18 years. During that time I was the lawyer on the Norgrove family justice review panel, so I have an interest in exactly what you are focusing on in this review.

Jacky Tiotto: I am the chief executive of Cafcass. I joined in September 2019 from a local authority director of children’s services post. I have worked for central and local government, and I am a social worker by profession.

Steve Crocker: Good afternoon, everybody. I am director of children’s services for Hampshire and the Isle of Wight. That is my day job. I am also president for this year of the Association of Directors of Children’s Services. Like Jacky, I have a long career in children’s services—30-odd years—and I too was a social worker back in the dim and distant past.

Q140     The Chair: Thank you. Members have their nameplates, which I hope you can see. We have one or two Members online. I did not properly introduce myself; I am Claire Tyler, the Chair of this committee.

I have a fairly broad question to find out from you what particular concerns you may have had, about the adoption and the family justice sections of the Act when it was passed back in 2014. Do you feel that those concerns have been borne out in practice since, and have there been any unexpected consequences from the Act, or is it simply the fact that life has moved on and things have changed?

Sir Andrew McFarlane: How long have you got? That is a very broad question. I will try to deal with one or two headlines. On private law, in the Norgrove review we were very keen to lower the temperature of disputes. We recommended moving away from the titles “residence” and “contact” to “child arrangements orders” so that the focus would be on just the arrangements rather than the status of the parent with or without the residence order. I think that has only been achieved to a limited degree. People who wish to have an argument with each other about these sorts of things will always look to see if they can score points.

There had inevitably to be in the Act some provision for the home or homes where the child has their base, because you want to give that parent freedom to go abroad, for example, and to make other decisions. Now, the distinction is between the “lived with” parent and the other parent who has arrangements just to see the child. That difference in status remains.

Secondly on private law, there was hope for the MIAM provision, which would require the applicant to meet a mediator before they could proceed with their application. That was a good idea. I think it is a shame that both parents were not required to meet the mediator. It is, sadly, honoured more in the breach than the adherence now. The system is very busy with applications, and by the time it gets to court, and it is clear that a parent who should have gone to a MIAM has not, it may be two or three months down the line. I am sure the temptation is for the court to say, “Well, we’re here now, so we’ll carry on”. I think a number of cases would be diverted if we could tighten up the MIAM. We are looking to do that. I think the ministry is interested in looking at that.

On the public law side, the 26 weeks was a very radical suggestion. I thought I would be lynched by people in the system, because it was wholly off the radar screen to think that we could get public law cases down to 26 weeks. The average at the time of the Norgrove review was about 62 weeks for each public law case, so to think we might more than halve that was ambitious. We did pretty well. Nationally, we got to within 26 or 27 weeks until about six years ago, when the volume of applications went up by 25%. My predecessor, Sir James Munby, said, “We don’t know why that has happened and we don’t know what we can do about it”. We were looking at that when Covid struck. I am keen to hold on to the 26 weeks’ target. We are looking at ways in the system now, post Covid, of tightening it all up again to cut down on the number of hearings.

The key message, which was different from the way life was being lived before, was that the court should be concerned only with whether the threshold was satisfied. If so, is the child going to go home or not? If not, is it adoption or some other care plan? The court would not be involved in the minutiae of what therapy the child might have or what school the child might go to. I think we have lost connection with that to a degree, and we need to get back to it.

There are other bits of the Act I could mention, but I do not want to hog the session.

The Chair: Thank you very much indeed. In fact, you have already answered one of my supplementary points, about MIAMs, so that is great. I am absolutely sure that we will want to return to the point about the 26 weeks. I too think it is extremely important.

Jacky Tiotto: Like Sir Andrew, Cafcass had high hopes for mediation and the MIAM. Our experience is that about 51% of applications to us have an exemption from a MIAM. I do not think that was expected. For us, there is a need to reconsider what you would have as an exemption from mediation, if indeed there were one. For us, mediation has not dampened demand or indeed the adversary in the system. Our experience is that it is something to avoid rather than a moment to focus on co-parenting.

From our perspective, the voices of children are still quite quiet in the system. It is still a very adult-dominated system, certainly in private law. There are thoughts in the policy space; indeed, in two pilot courts at the moment children are being seen earlier. We have to ask ourselves whether going into a first hearing without having seen the child in many circumstances is the right thing. The voices of children could be amplified more.

On the 26 weeks, as Sir Andrew said, it is disappointing that we are where we are. It is something we need to grip back. The delays that children are experiencing in public and private law at the minute are difficult for them.

The data we have on the effectiveness of proceedings and what happens to children is pretty poor. We have to be very worried about having a family justice system that does not know how children fare in it. I know that addressing that was an intention of the Act.

The Chair: Thank you very much. Again, there are some very important points. I know we will want to return to the issue about the voice of the child, which the committee feels quite strongly on, as well as your point about data.

Steve Crocker: At the time, the Association of Directors of Children’s Services welcomed the 2014 Act. Most of the things that we see are probably unintended consequences that need thinking through.

Sir Andrew and Jacky mentioned the adoption cases, which caused some disruption to the system. We welcomed the 26 weeks. It would be interesting to see where we would be now if it was not for Covid. My perception is that we were, broadly speaking, on the right track and that the last couple of years sent us off track significantly. I was publicly expressing optimism prior to Covid, so there we go.

Another unintended consequence has been what we see as the increased use of care orders at home, which is linked, more than likely, to the wish to see cases conclude within 26 weeks.

Finally on this, and as my fellow directors of children’s services would want me to say, although it is not germane to most of the discussion we are having today, the provisions of the Act on special educational needs were really significant. That was the area where we mainly parted company with the Act.  There have been significant problems with the implementation of that aspect of the Act. I know that we are not discussing that today, but I would like to put a marker down around it.

We have a real problem in the system. As it stands, very few authorities are meeting the 20 weeks’ timeliness. We have an increase in children with special educational needs, getting on for 100% apparently, which is leading to an increase in costs. That cannot be right, and it seems to be a policy failure to me. If only 20% of authorities are getting these things right, there is something wrong with the policy. I am very happy to come back to the committee on another day to talk about that. I will not try to take the committee down that particular alley today.

Q141     The Chair: Thank you very much. As you can imagine, special educational needs are another key area of concern for the committee. We will be addressing that over the next few weeks. We may take up your offer, so thank you very much for that.

I have a final supplementary question, which is about fostering and adoption, particularly early permanence. The Act introduced a requirement to consider fostering to adopt placements. We have heard from some people that the courts felt that that was pre-empting their decision on what was best for the child, and has certainly led to quite a lot of differences in different parts of the country. Do you agree with that and how do you think it could be addressed?

Sir Andrew McFarlane:  I think it is a good idea. Research where it has been tried out shows that it is better for the children if they do not have to move again. There have been various models for it, and for a long time I have been in favour of them all.

It is not a topic that crosses my radar. I wonder whether it is a facility that is being taken up very much by local authorities. I do not think the courts would be against it, and I do not think it pre-empts, because there are very good-hearted people who take the child in on the basis that they may be the adopting parents, but on the other hand they may give the child up after the proceedings. My experience is that those people have been chosen well and they have their eyes wide open to what they are doing. I do not think the courts would be agin it and I do not think it is prejudging. It is simply a very child-centred and sensible caring arrangement while we sort the issues out in the court. I do not think it happens very often. I do not know what the data is on that. If it is helpful, I can ask and be in touch with your secretariat with any figures we can get hold of.

The Chair: Thank you very much. That would be very helpful. Mr Crocker, would you like to pick up that point?

Steve Crocker: I had this discussion with our regional adoption agency lead only last week. In fact, we have seen an increase in the number of people who are assessed for fostering to adopt, which is really positive. Her sense was that initially there was probably a bit of reluctance and “We’re not sure about this”, but as we progress cases and the courts and the local authorities, and everybody, can see the benefits, we are starting to get traction in this area.

I would probably have to refer back on the point that it is a bit patchy. Maybe some of those discussions still need to be had on a local basis as we go forward.

Jacky Tiotto: It has not come across my desk at Cafcass, but having been in a local authority before I completely agree that it is in the interests of children. The trick is to identify children early when they are right at the beginning of the concerns path. We had a lot of success with that and there was no presumption at all.

The Chair: Thank you very much indeed.

Q142     Lord Bach: Good afternoon to all of you. I am going to ask a very general question too, but I shall follow it up with a supplementary that is more specific. What is needed to ensure that the family justice system operates as a cohesive and easy to navigate system?

Steve Crocker: The way in which the three pillars, as they were described earlier, work together now, without being too cosy about it, is probably better than it has been at any point in my career. Interestingly, one of the factors that has brought us together has been the Covid experience, where we have to sit around a table and work out difficult stuff together. That has been quite cathartic and quite useful for us.

We have to take forward the gains that we have made over the last few years by continuing to have our regular meetings through the Family Justice Board locally and nationally. As you have heard already today, we must identify the common cause and move through that quickly and in the child’s timelines. I feel optimistic about the three pillars working together.

There is probably some work for us to do generally on communicating with each other. We are all in the same boat in that regard. I need to make sure that Sir Andrew and Jacky see what is going on in the world of children’s services, and vice versa. Without being too cosy about it, I feel that we are in a decent place to move forward. We are not in the best place we would want to be because of Covid, but we have some good connections now.

Jacky Tiotto: We probably do not have a strong enough policy on families in this country. The world of families is split across too many government departments. There is a case to strengthen what we believe the family unit is and how we support families, and within that children.

The data that we have on families is not good enough—I determined not to use any high adjectives. We need a better dataset. We have 152 local authorities, and independent judges and Cafcass, but leadership of the system is not strong enough in policy terms. We are nominally accountable to the Family Justice Board, which is ministerially led, but it is not strong enough. We need a business plan of some sort, with a set of priorities that we have really nailed and agreed. We are moving towards that, but it is slow. We need to do better and faster on the leadership of the system. It is a very difficult and disparate system.

Lastly, we need much better feedback from parents and children who are in the system. They would probably teach us the most about how to use better what we have.

Sir Andrew McFarlane: There is no system. I think Mavis Maclean in her evidence to you said that none of us ever thought that there was a system until David Norgrove said that there is a system. What we have is a list of different agencies—the judiciary, the Courts Service, Cafcass, the local authorities and then the police, the health service, the Legal Aid Agency and the professions—and everybody has to co-operate with each other for a case to take place. There is no single system that requires them to work together, but we try to, and we do. The mistake is to think that there is a system. Part of my job title is “Head of Family Justice”, but it does not mean anything. I cannot direct X or Y to happen, as would be the case if I was the director of ICI or whatever.

Steve is quite right that before Covid we were much more disparate. We met every now and again, but when Covid struck, we, and the other agencies I mentioned, met once or twice a day in the first week and then at least daily for the first three or four months. We still now meet once a week at leadership level. That has been enormously beneficial. We have shared each other’s problems and worked together to help each other to solve them. I think that will carry on, so that is a major step forward.

David Norgrove identified the lack of system, and the Family Justice Board was an attempt to resolve it. Despite the good will of everyone involved, including all the Ministers who have chaired it, it really does not work. It meets once every three or four months. This is not at all to be critical of any of the individuals, but the Ministers change; quite often it is never the same two chairs from one meeting to the next.

There is need for some thought as to whether it should meet slightly more regularly—we do not all want to live in each other’s pockets all the time—and have an independent chair who is appointed for three years, or whatever it might be, to keep us all in touch with each other and follow things up from one meeting to another. It is not for that chair to be the director, but just to hold the co-operative body together and give some continuity. I think that would be very helpful indeed.

Q143     Lord Bach: Thank you. I have a supplementary that is slightly more specific and is in the realms of private law. Would the panel agree individually that the return of legal aid, particularly at the early stage of a dispute or case, might assist the family justice area in operating better? It is common knowledge that legal aid was taken out of scope in private law, but that happened only a fairly short time before the Act that we are dealing with came into force. It seems to some that that is a fairly unlucky coincidence.

We have had witnesses before our committee, before you, who have used expressions such as, “There is a desperate need to have proper legal advice right at the outset”. Indeed, a comment that I remember well, although not said to the committee, was that with family legal aid “a little early help goes a long way”. I would be very interested to hear your views on that.

Sir Andrew McFarlane: I certainly agree with the observation that you have just reported to us. As a judge I have to be careful not to be critical of government policy and other matters, but it is clear to us on the receiving end that by the time the very much increased body of litigants in person arrive before the judgewho, along with the Cafcass officer, is the first professional they have probably seen in their journey or disputethey have set expectations of what a court will do, what will happen and what their rights are, et cetera. The judge at the first hearing is partly engaged in managing their expectations and getting them back to a position of understanding the situation. Early advice from someone, whether it is a lawyer or some other form of family dispute resolution professional, would be very important.

Lord Bach, you know, as I do, from our early days as young lawyers, as surely we were at one stage, that Green Form legal aid paid for a small amount of legal aid for a person to go to a solicitor and get early advice. I am not saying that that should come back, but I think it paid dividends because it provided the advice. One thought is that, instead of it being a lawyer they go to, some form of professional who might be able to signpost them to mediation and to some form of educational videos, books and information about dispute resolution or to a lawyer would be helpful. The removal of legal aid at the time it happened inevitably led to an increase in the volume of cases simply because people were not exposed to realistic advice as to their options before they pressed the start button on the legal process.

Jacky Tiotto: Cafcass’s position is that legal aid would be more helpful early on. Parents regularly tell us that they do not understand the system that they enter—either what is possible or what is about to happen. Earlier advice, legally supported, is definitely something we would welcome from our perspective. Like the judges, we find ourselves giving that advice now as Cafcass officers, whereas previously it was given by a person who was legally qualified.

We also think that it did some damage to the mediation space. Probably one of the reasons why mediation is not taken up is that it is not offered in the same way. The latest statistics I have seen, preparing for today, is that only two in 10 are currently legally represented. That just adds to the system jam, because everything takes longer.

In private law reform, the whole idea of loading the system earlier with help and advice is the only way we will reduce demand. For us, it is a pretty obvious thing that we need to reinvest in. I say reinvest, because we would have to double-run the system. We would have to fund it so that help was there for new applicants while we were dealing with the backlog that we have now, which also needs resourcing. We will probably come back to that, but that is our position.

Steve Crocker: I do not have much to add on this. Obviously, we do not deal with many private law cases. It is difficult to draw a straight line, but I can point to an increase in the number of really adversarial private law cases that lead to allegation and counter-allegation between parents that end up with us because we have to investigate those allegations. It would have been better if somebody had been able to get hold of the two parents earlier in the system and advise them properly, because frankly they are not doing themselves any favours by making allegations and counter-allegations. I cannot draw the straight line, but I think there is a need for some earlier advice in the system.

Q144     Lord Mawson: Covid brought agencies together and forced them to work together quite quickly because of a set of serious problems. I can already see in the systems that lessons have not been learned and a return to business as usual is already going on. How do we ensure that the drivers towards joint working remain in place?

I have not spent any of my time in the world you are in, but I have in the NHS. I have watched lots of rhetoric about integration and joined-up working, all of which is correct rhetoric. I have watched and read researchers writing about all these things, but none of them talks about the money. When you run integrated environments, which my colleagues and I do, and have built quite a few of them, you find that, while all the rhetoric is saying one thing, the money is constantly pulling you apart, preventing GPs and others from actually building integrated environments. The money itself is working against the rhetoric and no one has actually noticed the way it is spent.

Is that true in your world? How does the money work? Does it actually bring you together? Does it encourage joint and co-ordinated working around families and children, or is something else going on?

Steve Crocker: Covid has forced us to re-evaluate a number of things, but the real revolution is not Covid, as tragic and terrible as that thing is. It is the forced and rapid adoption of new technologies. If Sir Andrew or Jacky took a view that a problem was emerging and we needed to meet urgently, we could do that within an hour, face to face, whereas in the past we would have probably had to arrange diaries and get the train to London. That feels like a positive step forward.

Your point about what integration means and what the money tells us is very interesting. It would be remiss of me not to point to the loss of funding for local authorities over the last 15 years. That is a real problem for us when it comes to balancing the books.

Lord Mawson: The only thing I would interject is that the health service constantly has endless money pumped into it. It is not, I found, about the money; you can put as much money into the systems as you want, but they are still pulling apart systems that need to integrate. Maybe it is different where you are.

Steve Crocker: There is an equal and counter position whereby if there is not enough money, that tends to pull things apart as well, so you end up with the same problem but through a different cause. I think all local authorities would point to pressures in the system over the last 15 years around children’s safeguarding; there is a well-evidenced set of data on that and a well-evidenced set of data on the increasing cost of children in care. I will not go into it here, but it is well evidenced. It means that there is less capacity in the system to point towards co-working and integration.

Jacky Tiotto: Cafcass’s experience is not that we feel pulled apart, but that there is a lack of resource in the system that creates bad things for children. At the moment, there is delay for them, and that, coupled with the fact that we do not have enough money to invest early, also means delay and more difficult proceedings. I do not experience the pulling apart that you describe, but the absence of enough resource from a social worker perspective in Cafcass makes it difficult for us to see the children as often as we would want to for as long as we would want to and earlier than we do.

As for learning and staying together, as Sir Andrew said, our recovery group remains in place, the family justice reform implementation group remains in place, and the partnerships are stronger, so we feel even more integrated. Even though we do not need them, and we do not formally have to have those meetings for the same reason, we believe that we should and we do. I do not completely recognise that challenge.

Sir Andrew McFarlane: Nor do I. Various other things are pressures in the system. For example, the money for Cafcass and for HMCTS comes at arm’s length, but both are from the MoJ, and we are all in touch with MoJ officials so that they understand the full picture in a way that, if there were different funding bodies, might not be the case.

Since Covid started, the amount of resource that has been put into family justice has gone up by about 25% in terms of sitting days; we measure what judges do by how often they sit. Yet the output of the system, the ability of the system to complete cases, has gone down in that it now takes more hearings per case to get to the end of it. That is a more complicated scenario than simply the money pulling in different directions. It is one we are earnestly addressing. It would be a real boon if we could recapture the efficiency of being able to have a case, have a hearing, the hearing be effective and hopefully resolve the issues. It would be a real boon to get back to those days.

The Chair: May I press you briefly on that point? At one of our previous sessions, the committee was alerted to the fact that judges effectively have to do the work of clerks, because clerks are not available in the courts. That slows them down and means that they are doing work that is not appropriate to them. Do you recognise that at all?

Sir Andrew McFarlane: I do, and a lot of judges would say that is the case. There are different layers of judiciary and some have never had clerks before, in the sense of a person who is the clerk, but there has been sufficient support from staff in the court building to allow the judges to do the judging and not do the administration.

We are coping with all the problems you are hearing about at the same time as engaging with new technology, which is coming through the reform programme throughout the court. In the course of five or six years, we are going from a wholly paper-driven system to a completely digital system. That leads to judges, who have to input information to the system, undertaking more administrative tasks than they ought to be doing. That, I understand, is the reality that your question describes; it is one I am very keen to address, and it is accepted. We are at a moment in the transitional phase, but I am keen to know that at the end of it the judges will go back to doing the judging and not be doing administrative tasks.

The Chair: Thank you very much indeed.

Q145     Baroness Prashar: Good afternoon, everybody. I want to pursue the question of the 26-week timeframe to which all three of you referred in the initial answer to the Chair. Obviously, it is seen as important and initially it was achievable. What do you think we can do to improve adherence to the 26-week timeframe across all regions in England and Wales? What needs to happen and what is happening to ensure adherence to the timeframe?

Steve Crocker: I can talk about what we do in our local area. I met relatively recently with Judge Levey, who is a divisional family judge. We went through every case, line by line, to see if there was anything we could do to speed them up. Is there anything collectively we can do? Are we content that that is just where it is on a particular case and explore the reasons why there has been a delay? It is basic performance management, if I can put it that way. I am comfortable with that; we should all be party to that.

On solutions in the medium term, there clearly needs to be more capacity built into the system to enable more sittings, to enable more cases to be dealt with at greater volume. That is tricky, because there are not lots of judges in waiting to sit through more cases, I suspect, although Sir Andrew will correct me on that. It is ditto for social workers, et cetera. Although the willingness is there, we have to clear this backlog and then get gradually into chipping away at the timelines.

It is rather like what we did at the beginning of this process, so it feels as if we have gone back to the start, unfortunately, but we got there and that is cause for optimism. We got to a point where I thought performance was looking reasonably healthy around the country, although, yes, there were outliers. I am confident we can get back there, but we need to start the process.

Jacky Tiotto: Our data tells us that at the moment about 20% of proceedings are completed in 26 weeks; it was 40% before Covid. We all think 26 weeks has to be regained. The backlog is one thing, and I would like to say something about it if there is a question. Even without the backlog, the answer has to be very, very clear timetabling for the child at the start, with clear thinking about why we are going into proceedings now, what has failed for the child, what the risk is, and why we need the order. There should be a very well-loaded set of proceedings at the start, with very clear exceptions about why you would go over 26 weeks; often it is because people want to test where the child is living, or, exceptionally, that there is someone new to assess or the parents are showing that they are unable to care and that needs testing.

Those exceptions and the clarity on why they are needed are currently not set out clearly enough to the court. At Cafcass, we believe that case progression officers would be a helpful resource. I will probably be shot for saying this, but it is true that what gets measured gets done. There is no formal reporting in the system about 26 weeks to policy leads, and they do not inspect to it at Ofsted either. Sorry. If they do, it does not feel strong enough. We need more formality around 26 weeks if we are to get it back.

Baroness Prashar: On your challenge at Cafcass, what sort of support do you need?

Jacky Tiotto: To get back to 26 weeks?

Baroness Prashar: Yes.

Jacky Tiotto: At Cafcass, we have resourcing problems beyond the 26 weeks. We have a backlog now of about 7,000 children that we did not have before March 2020. We do not have a solution for that. We do not have the social work capacity to manage that backlog. The easy answer for us in allocating work and getting it through is more staffing, I am afraid; it really is that basic. Even if we took out the backlog and pretended Covid had not happened, we still would not have had enough guardians to resource the demand in public law that was there at the time. There has been a drop in public law demand in the last year, but for us it is purely and simply about resourcing.

Sir Andrew McFarlane: There are too many cases in the system for our ability to get back to 26 weeks. At a very high level, not wishing to forget that we are dealing with children and this sounds like running a factory, you want to reduce the volume of cases coming in if you can and increase the efficiency of the system to deal with those that are coming in.

I will not speak for very long at all about volume, although I could speak a lot about it. Under James Munby, we started looking at it, and when I became President it was pretty clear what was happening; the 25% rise in volume was largely cases of neglect in public law, not that there have suddenly been 25% more appalling abuse cases. These were grey area cases where the local authority might or might not, on any particular day, issue proceedings.

We set up a working group on public law that I asked Mr Justice Keehan to lead; you will have heard of that from other people. They achieved consensus across the whole board, with local authorities, government, Cafcass and others, that what needed to be undertaken was time spent in reconnaissance by the local authority before they issued proceedings, to assess the family, look at who else in the family might assist the parents, and what resources could be put in other than going to court. That would take time, but the court would respect that process, and would not start by immediately instructing fresh experts to come in. The cases would only come to court if they really had to, and if they did they would be well assessed so that they were match fit for the court process when they arrived.

Those recommendations are out now and the aim is obviously to change the behaviour and culture of 152 local authorities. They seem to have been taken up and there has been a dip in the number of applications. It will not be all just because of the working group report, it may not even be at all because of it, but I hope it is at least part of what has gone on.

As regards increasing efficiency, because of Covid and because the court has become used to saying, “Okay, we’ll have another hearing”, “We’ll do this because of Covid”, or, “We can’t get this assessment in”, the court has become used, to an extent, to cases not being finished in 26 weeks. We have to get back to where we were and re-educate ourselves to do that. At Stoke-on-Trent, the judge there, about a year ago, set about a deliberate policy of cutting the hearings down. Apparently, every case came in marked urgent, so it had a hearing that was not effective because it was too soon. They cut down to just three hearings per case, focusing, as I said earlier, on what the court has to do under the Act, and they are now getting close to 26 weeks. That reassures me that my gut feeling that we need to reconnect with the Act you are looking at is the right way forward.

Baroness Prashar: Are there any lessons from your work during Covid coming together—the three pillars coming together? Are you working together to make sure that the timeframe is kept and met? Is that something that happened?

Sir Andrew McFarlane: We really are. The public law working group is about 40 people, representative of the whole range of agencies that you would want to have involved; there are academics and civil servants in it as well. We three certainly buy into it as the sensible way forward. There is unanimity of mind in relation to this.

Jacky Tiotto: I want to put on record that as Covid progressed and we became more worried about the delays for children and the impact on them, between the judiciary, local authorities and Cafcass, we have run what we call a public law snapshot. We have done three of them. They are an effort shared among us to identify the most delayed children and to use that data to enable conversations in the courts about how to prioritise in the way Steve described, line by line, which children need to be in fast and now because they are severely impacted. That partnership is in evidence for the children we are worried about, for sure.

Baroness Prashar: Why can this not be done by local family justice boards to make sure that the timeframe is maintained?

Jacky Tiotto: It varies from local area to local area. Probably that question is about whether local family justice boards have the authority and status they need. They probably do not and most of us think they need resourcing, leadership and a programme of work that comes from a set of national priorities. We are keen that that happens, but, again, they need resource. They differ from place to place. Some monitor it very heavily; others are not able to.

Baroness Prashar: Thank you very much.

Sir Andrew McFarlane: I agree with that. For the local designated family judges—there is one in each of the 42 centres—it must be their priority to understand what is happening in their court. If it is not in the local family justice board, they will be having conversations with their local authorities, local Cafcass management and the Courts and Tribunals Service to try to drill down and move back, as it were, in the balance sheet of cases coming in and cases going out.

Baroness Prashar:  Thank you very much indeed.

The Chair: To help me on a couple of points you have raised, and I am only looking for very brief responses, first, does Cafcass currently have any case progression officers, or is that something you would like?

Jacky Tiotto: It would not be for us; they would be for the courts.

The Chair: Okay. Secondly, who currently tends to chair the local family justice boards?

Jacky Tiotto: A variety. We chair about 30% of them.

The Chair: Right. Probably this is more for Sir Andrew. On the role of the designated family judges, do they still see themselves as primarily being about active case management to try to achieve the 26 weeks?

Sir Andrew McFarlane: Absolutely. I would have thought that was their priority in public.

The Chair: Going back to what you said about the national Family Justice Board, would it help if, for example, it met more often and possibly had an independent chair, as you suggested, and if Ministers were to make a statement reinforcing the importance of 26 weeks, because obviously a lot has happened in the last few years?

Sir Andrew McFarlane: Certainly. I stand by what I said about the national Family Justice Board. I am sure it would help if Ministers said that; I am sure that is what they think. We are all on the same page with regard to these matters, and judges would not need to be told that, nor would the local authority, or Cafcass. We just have to roll up our sleeves and start getting back to normal in that regard.

The Chair: Thank you.

Steve Crocker: This is a very quick point so that it does not run away from us. I am not here to speak to or support Ofsted, but I can report that when we were inspected on the Isle of Wight in late 2018 and in Hampshire mid-2019, Ofsted looked at all of our cases that were in public law, outline and pre-proceeding. They seemed to have a handle on it, which would be through their help and protection judgment.

The Chair: Thank you.

Q146     Baroness Blower: Thank you very much. I will address this question first to Mr Crocker, please. How can we ensure that fewer care cases escalate to the point of needing court intervention? We have previously clearly heard that there are issues of resources about the extent to which it is even possible to make earlier intervention on a social worker basis, which would obviously mean that one would then be dealing with families that were not in crisis and so on. I assume you agree with that. Is there anything else you want to say about other things that might be done?

Steve Crocker: With the public law outline, and pre-proceedings within that, it took some thinking about how we would implement them locally. I think most directors of children’s services would agree that they are a good thing and that they have driven practice in a positive direction to try to prevent families ending up in court unnecessarily. Local data that I have shows that about 50% of the families we work with in PLO within that range never get into the court arena. That is a chunk of the work that we are doing with children on child protection plans and so forth. It feels an entirely positive step forward to try to divert those children. I have no evidence to say that those children are coming back further down the line, certainly not yet, so it feels positive.

The other thing we have to look at and recognise is that this is part of the whole spectrum of intervention with children and families, stretching down to the earliest of early help to support families who may be struggling a bit, to more formal interventions around children in need and child protection. We have not talked about it today, probably rightly because we are looking retrospectively at the 2014 Act, but the proposals set out in the independent review of children’s social care are generally positive in the direction of having a more robust system of family support and help so that we can try to get help to families at the earliest point at which they need it, rather than waiting until they are in PLO or the court system. It is common sense, really.

Notwithstanding that, we all know that there has been an increase in the number of cases coming through to the court system. There is a variety of drivers behind that and it would be impossible not to recognise the impact outwith this Act, which is the impact of 12 years of austerity on children and families. It would also be impossible, at the moment certainly, not to acknowledge the impact of pressures on other services, particularly for children’s mental health. There is a significant impact on waiting lists for assessment and waiting lists for treatment for children, typically teenagers but not always, for mental health problems. What happens in those families is that it is enormously stressful; it is enormously difficult for those families. The families get into trouble, they break down and they end up in this system.

There are other pressures in the system; there is better identification and a whole range of other safeguarding issues, such as extra-familial harms that are more and more prevalent. All of these push more and more cases into the system, but I welcome the provisions in the Act on the public law outline. They have been good and we are getting better at them.

Baroness Blower: And we would be even better at them if we had more resources.

Steve Crocker: Correct.

Baroness Blower: Ms Tiotto, do you want to say something on that?

Jacky Tiotto: If I might slightly go off my script, I agree with everything Steve said, but we must look at the variation across the country in the rate of care proceedings. We do not talk about why, in some places, it is 5,000 to 10,000 and in others it is 30,000. We need to understand that, and that goes to the point about a significant dataset. What enables families to succeed in the pre-proceedings bit of their lives and what does not? We do not know. Steve said he had local data, but there is no national dataset. If we are in the business of discussing removing people’s children, we ought to know what helps and what does not.

There is probably still more scope for the PLO to be kinder. What parents say is that the whole scenario of being told in a letter that you have reached a point where you may lose your children is still very frightening; they often do not feel involved in what happens beyond that. That needs to be re-examined because it probably affects the outcomes in proceedings.

Baroness Blower: If parents do not feel involved, presumably there is the whole question of whether children themselves are involved at all.

Jacky Tiotto: Yes.

Baroness Blower: Obviously, age appropriately.

Jacky Tiotto: I took soundings from the Family Justice Young People’s Board before coming today. One of the things it asked that I say on its behalf is that there are still many children who do not understand why they are in proceedings and often what the outcomes are. We need to take account of that.

Baroness Blower: Sir Andrew, if you want to add anything, please do.

Sir Andrew McFarlane: I do not think your question was really for me. I have been struck by what I see from to time that indicates that parents, particularly those who have been legally represented, have not understood what went on. They had a need for someone to be with them at court, either a professional or a volunteer, to help them get a handle on what was taking place. That is a shock. I have nothing to add, unless there is a supplementary question.

Baroness Blower: That is fine for my question. Thank you.

The Chair: Thank you very much.

Q147     Baroness Wyld: To return to private law cases—there will be a bit of duplication, because you have very kindly already answered part of my question—we are clearly trying to grip how we ensure that the right cases go to court and others are dealt with by other means. Sir Andrew, you talked about tightening up the MIAM system, for example. Is there anything else you would like to say on that topic that we have not covered?

Sir Andrew McFarlane: It is something I feel very passionately about. Sadly, the majority of cases that come to court in private law need to come to court because they involve domestic abuse allegations or some other need for the court to act in a protective way, either for the adults or in making arrangements for the children. There are a whole lot of cases where we do not help, by giving people a field as it were, to carry on their dispute about their child and for that to take long and to be formulated into a custody fight, as it would be seen by them, with the language that is used. Those people would be much better served by at least having the chance to resolve their dispute by other means before they issue an application.

We do not know that they even exist—we being the people inside the court—until they have made an application, so we cannot connect with them.  You will all, I hope, be familiar with a document called What About Me? prepared by the Family Solutions Group about two years ago. It pulls together all the suggestions for what could be going on away from the court, so that the court is the last port of call rather than the first port.

A book has just been published called (Almost) Anything But Family Court, for which I wrote the foreword, so that gives you an idea about it. We owe it to society to form a whole range of options. It is a mistake to think it is just mediation. Mediation is simply one form of dispute resolution. People who are separating are frightened, bewildered, angry and hurt. They do not really have much understanding of what a normal set of arrangements might look like. It is not out there that easily. There are groups that advise fathers and mothers, and there are groups that advise parents in a more neutral way. Those are jolly valuable, but you have to link into them.

I would be keen for the Government, as it has to be, to do more and to do a range of things and provide information locally for people, to signpost them. There is something wrong with society when the family court is busier than the criminal court and the civil court. I do not think we are helping people. I will subside on that, but I feel very strongly that we ought to be doing much more.

Baroness Wyld: That is very helpful. We must read your foreword for certain, and the rest of the book. Ms Tiotto, do you want to come in?

Jacky Tiotto: To Sir Andrew’s point about what happens before you apply to court, we think that a notice to apply period would be worth thinking about. You could, if the help was available, start putting it into place at that point, before the court had received the application. In that time, we would need to think about whether a Cafcass officer would see the family, whether they would see the child, and in what circumstances. We have not answered that question yet, because it would be a completely different resourcing model and a completely different piece of legislative provision if we were involved before the court had ordered. I say that because there were probably very good reasons to allow a first hearing to happen without Cafcass seeing the children.

Re-examining that now, it feels a bit peculiar, in many cases where there is alleged harm for children, that we do not see them, because it is very hard then to advise on what we think should happen. It is pretty obvious that we will have to do a Section 7 report, so why delay that for the children? Having us present earlier really needs to be thought about, but it then needs resourcing.

Baroness Wyld: It is a potential change to the system, or that part of the system, rather than just signposting.

Jacky Tiotto: Yes, for some families, but not all. The pre-court space is definitely something to think about.

Baroness Wyld: Okay, that is interesting. Thank you. Mr Crocker, do you have anything to add?

Steve Crocker: I do not have much to add to that except for a word of caution. I hear occasionally that family hubs might be the solution to this. They might be, but they are very limited at the moment. Only 75 authorities will have a family hub. My urge is not to put all our eggs in that basket, and to continue to think about how we get early contact, as Jacky outlined.

Baroness Wyld: Do you think they could be a good gateway? Is it about resource and the speed of the rollout, or do you think they are not the right place to focus the signposting and the starting point?

Steve Crocker: At this point, I do not know is the honest answer, because we do not have any yet.

Baroness Wyld: There are some.

Steve Crocker: There are things that are described as family hubs, and the Isle of Wight has one of the examples. You could certainly imagine a scenario where they become a locus for family support and family help, but it would need some thought and, frankly, investment in finding people with the right skills to do that. It is a highly skilled role. We need to be conscious of what we are asking people in family hubs to do. We need to make sure that they are trained and properly equipped to do that.

Baroness Wyld: Yes, absolutely. Thank you. That is really helpful.

The Chair: I have a very quick follow-up, Jacky, if I may. Would the very interesting suggestions you made earlier about how things might be done differently and how Cafcass might be involved in a different way require legislative change?

Jacky Tiotto: I believe they would.

The Chair: Do you know which Act would have to be changed?

Jacky Tiotto: The Children Act itself.

The Chair: Okay, thank you very much indeed for that.

Q148     Baroness Bertin: Good afternoon. Could I ask about the very difficult issue of presumption of the involvement of both parents in the life of the child? Do you think that has affected proceedings? Has it been a good thing? Should it be amended? Of course, no one can dispute the good principle behind it, but there have been worries that the presumption can override the welfare of the child. Do you recognise that? We have had very different views, I should add, in evidence we have already taken.

Jacky Tiotto: It is on the face of the Act, and I think it needs to stay there. The paramountcy principle about the welfare of the child, which is right there in Section 1 of the 1989 Act, is the one to stick with. It is their best interests and their safety that you assess when you are considering contact. For us, it is about good social work assessment of what will be in that child’s best interest. The Family Justice Young People’s Board said to me, “Please don’t assume that the matter in front of the court is the only one I’ve lived with. I may well have lived with other difficulties, and you need to listen to my voice if I don’t want contact, as well as when I do”.

The social work assessment before we make a recommendation to the court has to take that voice and think about the presumption, the voice and what is in the best interest. You make a very complicated assessment because there are two parents, both with parental responsibility legislation that says you should assume it is in their best interest unless you can prove it is not. It is very hard to square, but it is there in legislation, and it needs to stay. We have to be very skilled, and we are for the most part, in presenting to the court our rationale for the contact recommendation.

Baroness Bertin: Thank you for that. Sir Andrew, would you like to give your view?

Sir Andrew McFarlane: It is in the Act, and it should stay there. As part of the Norgrove review, it is something we looked at particularly. Indeed, David Norgrove and I went to Australia where, at the time, they had just brought in a far more detailed set of legislative changes that set out equal parenting, and we engaged with that proposal.

In the end, we concluded that there should not be an amendment to the Act, so the provision that came in was something that we were not recommending, partly because, to my mind, what is in the Act now—this proviso—is a statement of what the law was in any event, so it has not added or changed, in my view, what was being undertaken before. There was a period when it raised expectations and we had some case law about what it meant. Removing it from the Act now, given that, in my view, it simply states the law, might cause a further flutter, which would be completely unnecessary. It certainly should not be made stronger.

You will be more aware of what the debate was at the time, but a proposal was that there was a much plainer principle for shared parenting. As Jacky said, if, as it is, the paramount consideration is the welfare of the child, you cannot have a principle alongside it that might in some cases be in conflict. You either have the child’s welfare as paramount or you do not. The way the wording came out of the process got it right—Baroness Butler-Sloss was quite influential in inserting words that entered a degree of realism into the equation—and I would not urge you to recommend anything that changes it.

Baroness Bertin: Thank you for that. That is very clear. Do you think that there is enough training for the people making those decisions, particularly at judiciary and magistrate level?

Sir Andrew McFarlane: Yes, I do. Making decisions about the welfare of children is tricky. They are not actually legal decisions; they are far more complicated than that. If you are going to become a judge doing private law work, you go on a one-week training course, and then you get refresher courses every two years. You have a mentor judge, and as you do cases day by day you have people to turn to. I think we do enough to support people. You can always do more training, of course, but I do not think it is inadequate.

Baroness Bertin: Thank you. Mr Crocker.

Steve Crocker: I agree with those comments. I have very little to add apart from this. It takes us back to our previous debate about how we get advice to families about not playing out their parental conflict in the court and using the court arena to extend existing coercive and controlling relationships, but instead try to resolve those in the child’s interest long before they get to court. That goes back to the discussions we had about family hubs and other forms of help, whether it is Cafcass or others, at the earliest stage.

Jacky Tiotto: As both Steve and Sir Andrew said, these decisions are difficult, and you have a high chance of upsetting one or both parents. The respectful thing to do, and we are trying very hard to do it well at Cafcass, is to explain your reasoning and rationale in the recommendations to the court so that it is laid bare for both the family and the child what you have used to inform that recommendation. It will be difficult, painful and life changing, so the courteous, right professional thing to do is to set out the maths of that. That is what should be expected and that is what children are demanding, and we want to do it.

Baroness Bertin: Thank you for that. It is greater transparency, essentially.

Jacky Tiotto: Yes.

Q149     Baroness Bertin: That leads me to my supplementary, which is on a slightly different issue, but I guess it all adds to the same thing. It is on data, which we have talked about quite a bit. Ms Tiotto, if there is one recommendation that we can put forward on data, what would it be?

Jacky Tiotto: Oh my God, one?

Baroness Bertin: I know. Maybe more.

Jacky Tiotto: Outcomes: what happens to children as a result of proceedings about them. It is not okay that we do not know what happens to children in these scenarios. We know what happens to our laptops and phones after we have bought them. We do not know what happens to those children. We need to track that, for sure.

Baroness Bertin: Yes, absolutely. Sir Andrew, do you have anything to add?

Sir Andrew McFarlane: I agree with that. I have said publicly in speeches over the years that judges are making these decisions day in, day out, but there is very little feedback as to how it has worked. If things go wrong and the case comes back, it does not necessarily always come back to the same judge. There is research, and clearly judicial training is based on that, but I do not think there is very much research as to how private law decisions have played out. It is not really data as such; it is much more sophisticated than that.

Generally, there is no feeling of confidence in the system that the data we have is very robust. We have constant discussions between Cafcass and HMCTS, and it is a lot better than it ever was, trying to compare the apples and the pears that are being measured, although in fact they are all the same fruit. The computerisation and digitisation of the courts system should produce far stronger data that can be accessed far more readily.

Baroness Bertin: Thank you for that. Mr Crocker, do you have anything to add?

Steve Crocker: Jacky’s point is the key one. We need to understand the outcomes for these people. I am with Jacky on that.

Baroness Bertin: Thank you. That is all.

The Chair: So that I fully understand the point, how joined up or otherwise do you feel that Cafcass data and court data is?

Jacky Tiotto: Not very.

Sir Andrew McFarlane: No. There is now a well-trodden path. Your data analysis talked about that.

Jacky Tiotto: Yes.

Sir Andrew McFarlane: In the three snapshots that Jacky described as an example, both sides really worked to make sure they were describing the same cases. We have a long way to go to being comfortable with that.

Jacky Tiotto: I should probably say that it is not about the relationships; it is about the systems. They measure different things, so you get different measures. I emphasise the point that it will cost money to have that data, but we need it now for two or three decades hence.

Lord Mawson: I keep hearing that it is going to cost money and we need more and more money. What thought is going into the fact that as a country there may not be more money? The world where there was going to be more money may no longer exist. It is a bit like the crisis of Covid. We keep weeping about it. I would like some thought about what we are going to do to engage with a world that is now going to be quite challenging about that. In my world, it is about innovation and new thinking because there may be some realities there.

Jacky Tiotto: I completely agree. In relation to family justice and outcomes for children, we spend however many millions we are spending on the system, and without data about its effectiveness that feels very short-sighted. It is upfront investment as well in data and technology to get the system there. I do not know how expensive it would be to maintain. The HMCTS family system is very old. That is an accepted point. It is about how much you invest to modernise it.

Steve Crocker: There is existing money in the system, but it would take a government decision to get that money out of the system. I have three examples of that. We have private children’s homes raking in profits of over 25%, sometimes up to 30%, and we have a market that is out of balance in terms of supply and demand. That needs urgent and national attention.

We should, in the view of ADCS, move towards a system that is not for profit. That would free up several hundred million, maybe even billions. We have an increasing crisis in the workforce around children’s social workers, where private agencies are hoovering up our staff and selling them back to us at twice the cost. We could put a stop to that. It is not in the public interest. We do not allow it with the police; I do not know why we allow it with social work. We spend billions on home-to-school transport offering a free good. I am not sure that is good value for public money at this point in time.

There we are. Those are three quick examples of things that would require government legislation and government action but would free up significant money in the system, which would allow us to reinvest in early help—the sorts of things that we have been discussing today—to support families. That would mean that fewer of them would be coming into the family justice system.

The Chair: Thank you. They are quite big points, and we do not have time to unpack them, I am afraid.

Q150     Baroness Massey of Darwen: I have a bunch of questions that are mainly for Jacky Tiotto of Cafcass, and they are about whether the voice of the child is sufficiently heard and respected in the family justice system. First, how do you enable the voice of the child to be heard and respected in the system? Could it be better? The second question runs on from that. I know that Cafcass oversees the Family Justice Young People’s Board, and I know what that is. How do you tap into it? Are you able to ask children in small groups or individually? How do you do it? How do children help? Why is the voice of the child important?

The Chair: Could I check whether you caught that? Baroness Massey was breaking up a tiny bit.

Jacky Tiotto: I caught everything except the point about the Family Justice Young People’s Board.

The Chair: Do you want to repeat that bit, Doreen?

Baroness Massey of Darwen: I said I know that Cafcass oversees the Family Justice Young People’s Board. How do you consult that board? Why is the voice of the child important? How do you go about enabling them to speak about their concerns? [Inaudible.] You pointed to one example, but—[Inaudible].

The Chair: It is a rather poor link, I am afraid. Did you get the gist of it?

Jacky Tiotto: I get the gist. If I do not answer it enough, we can come back to it. First, why are the voices of children important? The proceedings are about them, their lives now and their future lives. There is nothing more important to them than whether they live with their parents and whether they spend time with them and/or how they see them. The importance of the process points to the importance of their voice.

You asked how they can be better heard. At Cafcass, we have a really serious priority on children’s feedback. We now write to children at the start of their proceedings, introduce ourselves and specifically say what our role is and that we want to hear from them how well we are doing, what is important to them and what we can do differently and better.

We have increased our contact with them through our auditing system; 50% of the audits we do in our local areas now involve a phone call to a parent and/or a child. Happily, I can tell you that two weeks ago we launched a telephone line that children can use to give us feedback about their experience of us when their proceedings have finished. If they call us about their live proceedings, we direct them to their family court adviser to give feedback or share their concerns. We generally now have a strong feedback strategy at the centre of everything we do.

In terms of how we work with the Family Justice Young People’s Board, they attend every Cafcass board. They are standing members of our board. I am the sponsor of the board on purpose, because I want it to have that profile in the organisation. They have a work programme with Cafcass, as well as outside Cafcass. I meet them regularly to review that work programme. In 2020-21, they were busier than they have ever been with us, so we feel confident that they are more present in our mind.

I will leave, if I may, 10 copies of a book from a recent project that we enabled with them called In Our Shoes. It is a book that they have written with their testimonies and their experiences of the family justice system, and I want to leave each of you a copy. That is an example of something that came out of a conversation between Cafcass and those young people. I do not know if that answers well enough.

Baroness Massey of Darwen: Yes, it does, and I look forward to reading the book that you leave. Can I ask you one further question? I gather there are about 50 members on the board. Is that right? How do you know that you are getting a cross-section of children and young people? Is it just the articulate and confident ones?

Jacky Tiotto: There are actually 79 members.

Baroness Massey of Darwen: Oh, wow.

Jacky Tiotto: They are a mix of children who have experienced public and private law proceedings. There is no shortage of applicants when we advertise for more members. There are a whole range of children, from confident to less confident speakers. What they all tell you is that being a member of that board is life changing for them in their confidence. Children who come to that board at age 10 may leave it at 17 feeling able to speak and feeling able to understand what has happened to them, and their confidence grows. There is definitely a range.

Baroness Massey of Darwen: Excellent. I look forward to hearing more. Meanwhile, could I ask Steve Crocker or Sir Andrew whether you have anything to add?

Steve Crocker: Not particularly. The only thing as we go forward is that the means by which we get children’s input might change in the next few years. We have talked a bit about new technology. Certainly, local authorities, for our children in care councils and so on, are starting to look at different ways of collecting that information—children giving us voice memos and things like that that they send on WhatsApp; I am hanging on the edges of my knowledge here. There are different ways to do it. We need to think differently about expecting them to sit in a room like this and tell us.

Baroness Massey of Darwen: That is helpful. Thank you.

Sir Andrew McFarlane: The Family Justice Young People’s Board is an astonishing organisation. In a way, someone like me would of course say that they are a jolly good thing. They are an extremely valuable resource. They constantly surprise me in what they say. They hold up a mirror to what we do. They pull us up on the use of language. They give insight into just what it is like to be a kid in the middle of all these proceedings. I always welcome their involvement, because it brings new knowledge and a real light on what we do. It is extremely valuable.

The Chair: Thank you.

Baroness Blower: I have a quick point of clarification. Is 10 the lowest age at which young people can join the board? Secondly, you said that you write to every child involved in proceedings. I am just wondering how young. Obviously, there will be tiny children. You cannot engage with them. Would you write to someone who was five?

Jacky Tiotto: First, let me correct something. I think seven is the youngest member of the board. I will make sure that I clarify that for you. “We write to all children as appropriate”, is the phrase I probably should have added. Even if we do not write an introductory letter to a baby, we will write a later-in-life letter while we are involved in their proceedings about why we were involved and what we recommended and why. We have re-established the terms of what we call the child’s plan. In explaining our recommendations to the children about why we will say what we are going to say to the court, we also write down their response, and we present those words to the court in our report in order to give them a voice in the court hearing.

Baroness Blower: Thank you.

Q151     Lord Mawson: What changes would you like to see made to the family justice system during your tenures?

Sir Andrew McFarlane: I could choose a number of things. I could suggest that it would be very good to have one government department that was responsible other than shared between the MoJ, the DfE for public law, and DWP, which holds the brief for separating parents. I think the Department for Levelling Up has an interest, understandably, in all of this as well. All of them are well intentioned. We get on well with all of them, but it means that we have to deal across the board.

If this is the “Desert Island Discs” question“Which record would you take to your island?”it is the reply I gave to Baroness Wyld. It would have to be a real push to develop a hinterland outside the court to support people who are separating so that they get sound, reliable advice, signposting, mediation, parenting courses and so on, without having to go through a court process.

Jacky Tiotto: I will fail on taking one record; I want to take a couple. For me, it is about timeliness in proceedings and delay for children. That is what we really need to grapple with now. It is about handling proceedings public and private. That would be my first. The second would be the same: front-loading the system so that we help people not to come into court, particularly in private law. For us as a children’s social work organisation, I am slightly worried that you said that I keep talking about resource, but we cannot give an adequate voice to children if we do not spend enough time with them and if there are not enough social workers to do that work. I need to say that, for us, it is about having enough social workers to do the job.

Steve Crocker: I will answer a slightly different question, if I can. It is slightly outwith the changes to the law. When we make changes, I am not sure that as a country we always follow them up well. ADCS has long been pushing for an overarching strategy, a plan, for children. So much of what we talked about today about preventing children coming into the family justice system actually sits outwith the law, but we do not really have it pulled together into a single plan. When we change the law, it slides off the desk, and there is not much support for implementation. A new burdens assessment is carried out that usually says, “It doesn’t cost anything”, and we find later down the line that it actually costs an awful lot. There is something about the implementation of changes to the law and there is something about placing the changes to the law within the broader context of a plan for children.

The Chair: Thank you very much. I have a final very quick supplementary for Sir Andrew, if I may. I was very taken by something you said at the beginning of this session. You said there is no system, which, of course, was the very essence of the David Norgrove vision, if you like. How different would the issues that we have talked about this afternoon be if there was a proper, joined-up system rather than what we have heard about, which in a way is informal, extremely well-intentioned collaboration?

Sir Andrew McFarlane: I do not know what it would be, because in the end there has to be independence of the judiciary. I just do not know what the system would be. I do not think there is a criminal justice system either, in the sense that the police, probation, the judges and the CPS are all the same organisation. We have to live with the fact that there is not one organisation. It would be difficult to think who would run that and who would be the leader.

The next best thing is what David Norgrove proposed: the family justice board, but with an acknowledged and respected person co-ordinating it to draw everyone together. There is a lot of good will. I do not think you will have detected anything competitive between those agencies. We want to do the right thing. It is a matter of co-ordinating us and drawing us forward.

The Chair: Thank you very much. We are exactly at our concluding time. You have all been very generous with your time. Thank you very much. It has been an extremely important session and will give us an awful lot to think about. If we want to come back to you on any points, I hope we may. You have made several offers between you to provide us with some additional information, which will be very gratefully received. On behalf of everyone here, and indeed virtually, I thank you. I now draw this meeting to a close.