Several children's organisations have come together to express their concerns about government plans to use the forthcoming Schools and Safeguarding Bill as a vehicle to amend key legislation in relation to the protection of children.
The Interdisciplinary Alliance for Children says that the government has not conducted a proper consultation with key stakeholders in the family justice system within the terms of the Cabinet Code on Consultation, nor has there been an impact assessment on the children concerned.
The Alliance is calling on the government to reconsider its plans to amend section 41 of the Children Act 1989. At present section 41 places a responsibility on the court to appoint a named guardian to represent children and their interests in care and related proceedings. The amendment would mean that the court appoints Cafcass the organisation, rather than a named practitioner, to carry out the role and functions of the Children's Guardian.
In a statement the Alliance said: "The independent assessment of the child's needs and circumstances carried out by the guardian working in 'tandem' with the child's solicitor, provides the court with the continuity of oversight of the case, unbiased information and independent representation of the child which the court requires in order to make the best possible decision about the welfare of each child.
"Children in care proceedings need the continuity of one guardian in whom they can develop trust to represent their interests throughout the case. Amending section 41 would weaken the safeguards for the child and be inappropriate at a time when Cafcass is under extreme pressure and is struggling with backlogs in both public and private law proceedings.
"The President of the Family Division published Interim Guidance in July 2009 designed to address the problems. He stressed that the changes, which include the widespread use of duty systems with the resulting risk to continuity of practitioner, would be temporary and will be reviewed by him in April 2010. It would therefore be premature to amend an important piece of primary legislation for children before the President has had a chance to review the impact of the interim arrangements on the children and proceedings concerned."
The Schools and Safeguarding Bill also puts in place a new framework to provide the media with access to reports and papers filed in family proceedings.
Practitioners are concerned that the plans risk causing significant harm to children where very personal details of their lives are published in local and national press and on the internet.
The joint statement continues: "The Alliance is in favour of making the work of family courts more transparent to a wider audience but there are alternative methods of doing this, which do not subject already vulnerable children to further risk. The Alliance therefore calls on government to withdraw proposals to permit media access to written evidence and reporting of the 'substance' of cases."
Medical experts and social workers are concerned that providing media access to medical reports could conflict with their regulatory bodies and there could also be issues about patient confidentiality. When talking with children professionals will have to explain to them that the media may see any resulting report. The Alliance says this will affect the willingness of children to discuss fears and concerns and undermine their trust in adults and family courts and potentially leave them at risk of yet further harm.
The Alliance also has "serious doubts" about whether the proposals are compliant with Article 8 of the European Convention on Human Rights and Articles 3, 12 and 17 of the United Nations Convention on the Rights of the Child.
At a time when the government is seeking to control legal costs and reduce delays in family proceedings, the need to consider on a case-by-case basis any necessary reporting restrictions and their scope will add considerably to delay and cost in cases, the Alliance says.
Speaking at the Family Law Conference in London earlier this month, the President of the Family Division criticised the further media access plans, saying that the proposed "stop-gap rules" have received little support.
In his keynote speech he said: "At a time when the courts' expanding workload is increasing with no additional judges or court days, this would be a particularly regrettable development. Regrettably, also, from the point of view of the profession it would be yet another expense to be absorbed by them within any fee regime imposed upon them by the LSC and a yet further disincentive to experienced advocates to engage in children work."
The Alliance is currently made up of The Law Society, Resolution, The Association of Lawyers for Children, NAGALRO, Family Law Bar Association, British Association of Adoption and Fostering, British Association of Social Workers, Adoption UK, The Catholic Children's Society, The Aire Centre, Children's Rights Alliance for England, National Youth Advocacy Service, Royal College of Paediatrics and Child Health, Voice, Women's Aid Federation and Liz Walsh the Editor of Family Law.