Knowledge Bite
Wasted Costs
This knowledge bite is aimed at all staff to highlight the impact of wasted costs, consider how they
can be avoided, and to outline what action needs to be taken if an order is made.
What are wasted costs?
Wasted Costs, also known as Costs Orders, cost Cafcass thousands of pounds each year;
between April 2018 to November 2021 the total was £291,101. The costs are determined by the
court and are usually the legal fees of the family’s legal representatives. If there is no wrongdoing
by Cafcass, Cafcass Legal can try to contest the claim or settle the claim by paying a reduced
amount.
The most common causes of wasted costs
•
Filing a report late or not at all, and not informing the court and parties in advance
•
A report failing to address the issues it was directed to deal with
•
Additional hearings being needed because Cafcass failed to do things right and on time
•
Failure to attend a hearing
For the children and families we work with, wasted costs often lead to delay in proceedings and
there is also a financial impact for children and families as valuable public money is wasted which
is needed for frontline services.
‘What do wasted
costs mean for me
and my family?’
Delay in decisions
being made for me
Continued uncertainty
about my arrangements
Additional stress/distress
for me and my family
A waste of public money
which could be used on key
frontline services i.e.,
employing additional Family
Court Advisers, to help us,
and other families
A negative impact on my
family’s relationship with
Cafcass and professionals
Wasted costs examples
Example 1
The Family Court Adviser, author of the section 7 report, was directed to attend the final hearing
to give evidence. The FCA left Cafcass, and it was agreed that the Practice Supervisor would
attend in the FCA’s absence; however, this was not communicated to the court or parents.
The Practice Supervisor attended the hearing but could not assist the court in respect of the
Family Court Adviser’s evidence as it was not the Practice Supervisor’s evidence, and the court
needed to hear from the report author.
The Family Court Adviser was subsequently able to attend court to give evidence but this
resulted in the hearing overrunning and the child’s proceedings being delayed.
Total costs sought:
Approximately £900 for the mother’s costs, and a risk that the father may also seek costs.
Key learning:
•
Where an Family Court Adviser is unable to attend a hearing as ordered, this needs to be
communicated to the court promptly
•
If Cafcass propose that a different Family Court Adviser/Practice Supervisor/Service
Manager attend, which may sometimes be unavoidable due to sickness or staff leaving the
organisation, permission of the court needs to be obtained
•
Substituting attendance of a Practice Supervisor when a Section 7 author is unavailable
generally will not assist a court as it is the author who will usually need to be subject to
cross examination.
Example 2
The FCA attended the final hearing, but this was adjourned due
to the father testing positive for Covid-19. The FCA was ordered
to attend the adjourned hearing which at that time had not been
listed.
The FCA contacted the solicitor and confirmed the date of the
adjourned hearing but did not add this to his electronic calendar
and subsequently made appointments for the same date.
The solicitor contacted the FCA the day prior to the adjourned
hearing and the FCA apologised and advised that he could only
be available between 10 – 11am and 2.30 – 4.30pm due to his
other commitments.
The FCA spoke to the legal advisor on the date of the adjourned
hearing who advised that the hearing had been adjourned again
due to the FCA not being available and advised that the parents
may make applications for costs.
Total costs sought – Approximately £6,000
Key Learning
•
Hearing dates need to be recorded on the system
immediately and added to outlook calendars
•
Management advice needs to be sought at the earliest
opportunity when an FCA is unable to attend a hearing.
How to avoid wasted costs
ChildFirst needs to be kept up to
date with all hearing and filing
dates
If you are at the hearing, don’t wait
for the order, record the outcome,
including details of any
hearing/filing dates, immediately
All orders need to be screened
immediately and information
uploaded to the system, so we are
aware of which hearings we need
to attend
If an FCA is on sickness leave, the
court and parents/parties must be
informed of non-attendance as
early as possible
Use your Outlook calendar,
including the reminder function to
remind you when your report is due
If you are unable to comply with a
direction you must discuss this
with your SM and write to the
court and parties at the earliest
opportunity; this includes any
extension requests. It should not
be assumed that the court will
grant your request and all
correspondence must be copied
to the parties
EIT FCAs should not agree that
an FCA will attend a DRA at the
FHDRA hearing, unless there is a
clear reason for doing so. If
attendance is directed, this should
be recorded on ChildFirst,
including in the child’s plan, and
the receiving team notified
What to do if a wasted costs order is made
•
We need to apologise to the family when errors have been made
•
Notify Cafcass Legal immediately even if the hearing is months away as there are strict time
limits for appeals
•
If an application for costs is made while you are at court, ask for Cafcass to be joined as party
before any decision is made so that we can make representations to the court in response. It
is not the responsibility of the FCA to make legal submissions on costs
•
Ask the court to give Cafcass as much time as possible to take legal advice and explain that
there is a need for Cafcass Legal to become familiar with the case (a few days aren’t enough)
•
Give Cafcass Legal relevant information; they can only advise you when they know the
specific circumstances
•
If the cost is deemed to be more than £1000, a Significant Incident Response (SIR) needs to
be initiated (the FCA must notify the service manager who will complete the SIR).
What information should be sent to Cafcass Legal?
1.
All relevant court orders
2.
All correspondence from solicitors/parties either raising the issue of costs or containing
criticisms of Cafcass which are relevant to the costs order being sought
3.
If time allows, a brief written summary of the reason why costs are being sought/have been
ordered
4.
A summary of why you think that a costs order is not warranted (This may not be a legal
defence but provides essential background information)
5.
Any correspondence from Cafcass to the court or parties about the relevant issue/alleged
failings
6.
Steps that Cafcass has taken to try to avoid costs being incurred by the parties (e.g. if the
report wasn’t ready by the hearing, did we write to the court and/or parties suggesting that the
hearing was adjourned?)
7.
If there is criticism of the analysis in any report, copies of all Cafcass reports in the case
8.
Any other documents which relate to costs
for FCAs
Consider colour coding your outlook
Early recording of hearings/filing dates
calendar to help identify which
hearings you need to attend
As soon as anything in relation to
Read and scrutinise all orders
costs is raised, discuss with your
carefully
Service Manager
Ensure that the court and parties
are aware if part of an order cannot
If in doubt, speak to your SM and
be complied with as soon as
Cafcass Legal
possible, and do so in writing
for service managers and
practice supervisors
Facilitate discussions about wasted costs in team meetings/group
supervisions to raise awareness in your team
Ensure that the court is informed immediately if an FCA is unable to attend a
hearing/file a report due to sickness
If an FCA leaves Cafcass but agrees to return to attend a hearing, confirm
arrangements with the FCA and consider sending a reminder
Ensure that any difficulties in complying with any aspects of a court order is
communicated to the court and the parties promptly
If there is any suggestion of costs being sought, notify Cafcass Legal
immediately
If in doubt, speak to your HoP and Cafcass Legal
Reflective Question for Group Supervision/Team Meetings
• What can you do as an
individual to avoid wasted
costs?
• What can you do as a
team to avoid wasted
costs?
Coming soon…
To assist service managers -
additional information is being
added to the dashboard to help
identify upcoming hearings where
the FCA is recorded as being
absent (sickness/annual leave).
Further details will be provided in
due course.
Created December 2021
