Guardians ad Litem (Hansard, 27 March 2001)

§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, your Lordships should know that the new Children and Family Court Advisory and Support Service (CAFCASS) will come into being on 1st April. It will combine in a single service the family court welfare functions currently provided by the Probation Service, the children's branch of the Official Solicitor's Department and the local authority guardian ad litem services. Guardians ad litem are experienced childcare experts appointed in public law cases to give an assessment of a child's best interests. Traditionally they were engaged by local authorities through 57 local panels: about 737 were treated as self-employed, and 113 employed. Eleven of the 737 raised the question of their status with the Inland Revenue, whose opinion was that all were employees. The project team for the new CAFCASS, which recognises that probably a majority of guardians want to retain self-employed status, has been negotiating with the Inland Revenue new terms of engagement by CAFCAS S which the Revenue would accept qualify as self-employment. They would move from an hourly rate to a graduated fee for each different service provided. Graduated fees apply widely in the law and what is essentially going on is an old-fashioned negotiation about the adequacy of the graduated fee levels plus some uncertainty among the guardians about whether they want to become employees or retain self-employed status.

§ The Earl of Listowel
My Lords, I thank the noble and learned Lord for his very full Answer. Is he aware that guardians have been hopping mad over what they have perceived as delay in reply, evasiveness and lack of consultation on the part of the new Children and Family Court Advisory and Support Service? Does the noble and learned Lord agree that it would be a tragedy if children at risk of harm from their families lose those experienced guardians who might choose to walk away from the profession?

§ The Lord Chancellor
My Lords, perception quite often departs from reality. The approach to the Revenue by the 11 guardians had the effect of imposing a more urgent timetable. The self-employed guardians' representative body, NAGALRO, had a 92 first draft of the proposed new contract just before Christmas. There have been regular monthly meetings since 1st June between them and the project team. A further meeting will take place this afternoon. The formal proposed contracts were not issued until 27th February; and a six-week honeymoon period from 1st April has now been proposed, during which the guardians could continue on their old terms or opt for the new system.
I hope that peace will break out and that these experienced professionals, whom we value highly, will come over to CAFCASS on terms that they can accept as fair.

Lord Renton
My Lords, can the noble and learned Lord the Lord Chancellor confirm that the answers he has just given will mean that lack of funds will not prevent justice from being done by the appointment of a guardian ad litem when necessary?

§ The Lord Chancellor
My Lords, there is no lack of funds. CAFCASS proposes that under a graduated fee system the guardians will be paid 3.8 per cent more than the total paid out to them by local authorities this year. The global sum will increase from £20.77 million to £21.55 million. So want of resources does not come into the issue.
I favour graduated fees in principle provided that they are set at a fair level. A system of hourly payment without limit and irrespective of the difficulty of the individual tasks undertaken can be an incentive to inefficiency and fail to deliver value for money.

§ Lord Tomlinson
My Lords, would it not be a gross mistake to attribute any degree of culpability to CAFCASS? It appears to be caught in a cleft stick between guardians, who want to retain their self-employed status, and the requirements of the Revenue.

§ The Lord Chancellor
My Lords, that is a very fair comment. CAFCASS is trying to secure self-employed status for those guardians who want it—it is by no means clear that they all want it—on terms that the Revenue will accept. Simply to have continued their previous terms when the Revenue's clear position was that they would not pass an audit for Schedule D purposes when they joined CAFCASS would have been irresponsible. CAFCASS would have failed the Revenue audit planned for itself and would rightly have been criticised by its auditors. So the description of a cleft stick is a fair one.

§ The Lord Bishop of Guildford
My Lords, I have to declare an interest. My wife is a self-employed guardian. The noble and learned Lord the Lord Chancellor will be aware that well over 90 per cent of guardians have not yet agreed to sign the new contracts. Many feel that under the terms of the contract they are unable to fulfil their professional duties under the Children Act court rules, Section 11, paragraph 9. Will the noble and learned Lord endeavour to use his offices to draw their 93 representatives directly into dialogue with himself in order that an honourable settlement can be found to their satisfaction and that of the Government?

§ The Lord Chancellor
My Lords, it is curious in a parliamentary Question and Answer session to appear to be participating in old-fashioned employment relations negotiations. I repeat my answer to the previous question. It was the wish of the 11 to change their status that put the cat among the pigeons, if I may describe guardians and the Inland Revenue in that way. The project team has offered enhanced graduated fees in the most difficult cases, as well as an independent review of the banding criteria and of the quality of service delivered to children after six and 12 months under the new system. The right course is to wish all the negotiators well.

§ Baroness Hanham
My Lords, I declare an interest as a magistrate in the family proceedings court. I do not want to continue the employment negotiations analogy, but, in view of the importance that the Government have attached to the creation of CAFCASS, and perhaps most importantly the necessity to vulnerable children of its smooth operation, if the negotiations do not come to an amicable solution very quickly, will the Government delay any further action on the fixed fees scheme until a pilot scheme has been implemented and evaluated to ascertain its impact?

§ The Lord Chancellor
My Lords, I do not think that that is the way forward. The tax status of self-employed guardians continues to be a problem for both the Revenue and the guardians, regardless of whether they remain for a temporary period with the local authorities. The way to deal with a problem is to address it directly. That is what the current negotiations are doing.