The Wimbledon final, 8 July 2002 – one which most Brits will remember for yet another sporting win by Australia, and a naked dance by a streaker during a break in play for rain. But the date has quite another significance for Charles Prest. It was on that day that the legal director for the Children and Family Court Advisory and Support Service (Cafcass) received a call on his pager to deal with an emergency case involving a 17-year-old girl.
The young woman was refusing a liver transplant that was critical to her survival. Her reason for refusal was not religious or because of risks involved in surgery, she quite simply did not want to live. The hospital trust was about to bring proceedings to gain authorisation from a judge to go ahead with the surgery and matters were complicated by the fact that she was in care because of alleged sexual abuse by her father. Prest was called in on behalf of Cafcass to provide her with advice.
Prest discussed the decision with her, and the way Cafcass could handle the hospital trust’s proceedings on her behalf. Eventually the young woman agreed to surgery, but her death three days after the operation dashed any hopes of a happy ending. “That’s quite a sharp example of the things that we do,” says Prest.
Cafcass was created by the Criminal Justice and Court Services Act 2000. The idea was to merge the 700 probation officers who handle family court welfare work, 810 guardians ad litem who represent children’s interests in child abuse and care cases, and the children’s branch of the Official Solicitor’s Department. These staff came from 113 groups with 57 sets of pay and conditions.
Prest joined at the time of the organisation’s launch in April 2001 and had not been involved in any of the three bodies that were amalgamated. It must have been a baptism of fire. Cafcass’s start was a troubled one, with delays in the family court system, rows over the contracts of the staff, and, ultimately, the departure of the first chief executive Diane Shepherd less than a year after she was appointed. Prest is cautious when talking about the subject. He refers to the launch of the body as a premature birth, and admits that an initial lack of funding made life difficult.
“When Cafcass was born it had a cash budget of about £72m for about the first year. In fact, it cost a little over £80m to run in that first year, and I would say, and I think others in Cafcass would say that, even then, some significant damage was done trying to keep the budget down to that figure. There were some things that we didn’t do that we honestly thought should have been done, but which we simply couldn’t afford.”
Prest is involved in lobbying the Lord Chancellor’s Department. Last year, the funding for Cafcass was increased to £84.5m. Next year, it will be somewhere between that figure and £107m – the figure that the body would ideally like to receive.
However, Prest is realistic about the budget. “I’m sure that outsiders, within the industry, would say we’re still underfunded. They may be right in a lot of ways, but I’m not sure they’re giving proper consideration to the overall picture of public funding.” To generate more cash for Cafcass would only be possible in one of three ways: if there was a sudden improvement in the economy; if the amount of funding received by the Lord Chancellor’s Department from the Treasury increased; or if Cafcass received a higher percentage of the Lord Chancellor’s fund. The first option is highly unlikely given the current state of the economy, and the second and third would come at a cost to another public service or another body funded by the Lord Chancellor. In the meantime, Prest seems to recognise that this is his lot. “There are no simple answers to the cry ‘Cafcass needs more money’,” he says.
So Prest manages the best the can with a five-strong team – although he aims to boost numbers considerably over the coming months. The team also has considerable help from external advisers.
Leaving the casework for a moment, Cafcass, like any other body, has to deal with legal issues related to the day-to-day running of the business. After a tender process at the end of last year, Prest appointed Beachcroft Wansbroughs as the main external adviser, with Michelmores advising in a lesser capacity on property matters.
As well as employment, health and safety and human rights and data protection issues, Beachcrofts will also be required to provide a lot of advice on professional negligence. “One of the ironies is that we’ve inherited the liabilities of the predecessor organisations,” says Prest. “We’re being sued at the moment for the alleged failings of an officer 20 years ago, but if that officer was negligent and loss followed, it will be Cafcass that has to pay the bill.” There are also two judicial review cases against the body, which are currently proceeding.
As well as the two panel firms, Cafcass instructs numerous firms and barristers throughout the UK in relation to the organisation’s own casework, and more particularly to do with work arising from Cafcass officers around the country.
Prest says: “I can think of one case where the solicitor [on the other side] was saying that the Cafcass officer was lying. The solicitor was going to give evidence herself in support of that contention, and in that case it was right to make sure that the Cafcass officer had legal support in proceedings, in result of this very strong allegation.”
External advisers are also instructed regularly in public law cases. Typically,in such cases, a child has two people to safeguard their interests. One is a solicitor and the other is the Cafcass officer. “In most cases that’s fine,” Prest says. “The problem arises if the Cafcass officer thinks that one thing is best for the child, and the child wants something different.” At that point, the solicitor, who until then has been representing both parties, will continue to represent the child, leaving the Cafcass officer in need of new representation.
Cafcass’s £1.5m annual legal spend is split between the two panel firms, firms representing Cafcass officers, and counsel instructed directly. “But it’s a budget that we’re going to have to look at very carefully, because it’s significantly overspent.”
While most of his team’s time is taken up with casework, Prest mainly deals with the overall running of the business. “Because in my view Cafcass had a premature birth and difficult early months, I’ve had to spend almost all of my time dealing with executive functions for the organisation,” he says.
He has also been one of just two lawyers manning the 24-hour-a-day, 7-days-a-week callout service for the past two years. Although he downplays this issue, he seems pleased that he will relinquish this part of his role by the end of the year. However, he does not want to lose touch with the casework and as more lawyers come on board, he will hopefully devote more of his day to it.
“It’s one of the things that I miss hugely. I miss being involved with children and families directly,” he admits. “But the compensations are that I have a uniquely interesting job. There isn’t another job quite like it in the family justice system.”
The Children and Family Court Advisory and Support Service (Cafcass)
|Organisation||The Children and Family Court Advisory and Support Service (Cafcass)|
|Annual budget for 2002||£84.5m|
|Employees||1,800 fulltime and approximately 300 contractors|
|Legal Director||Charles Prest|
|Reporting to||Chief executive Jonathan Tross|
|Main law firms||Beachcroft Wansbroughs, Michelmores|