Parenting Time Guidance: Can Cafcass reform?
The short answer is ‘no’. As set out below, the first useful change by Cafcass entails admitting a virus (knowledge / knowhow / expertise / thought / concepts of child welfare etc etc) that must trigger Cafcass’ drastic restructuring and/or its dismantlement.
However, Cafcass can still play a useful role in something like its present form. It can realign itself to:
relinquishing the cases without serious issues - other than the level of contact
focusing on cases with serious issues - other than the level of contact
This matches Cafcass’ capabilities and aspirations.
Horses for Courses: the post-EI Future for Cafcass
Cafcass does not want to provide a service for Section 8 cases where contact is the only issue. It does not do so. It says it should not do so. That is Cafcass’ publicly-stated position. In the 2019 words of Cafcass’ longest-serving chair, endorsed by the Private Law Working Group 1(para 25):
“Quite simply, these families should not be in court. The court process risks escalating conflict to a point where it becomes harmful. While one role of the court is to arbitrate where parents are not able to reach agreement, we need to guard against the court becoming the 'third parent', thereby interfering with the proper discharge of parental responsibility.”
Cafcass’ role is to ‘guard against’ providing these parents with guidance on the issue in dispute. Parents who are in court - because they cannot resolve this issue - are told (i) they should not be in court and (ii) they should resolve this issue. That is not helpful. The Private Law Working Group’s second report - which was a mouthpiece for Whitehall/Cafcass - took things a step further: the preparation of guidance was undesirable, unethical and illegal.
These contact-only disputes are the cases EI protocols would resolve, most likely without troubling the courts. EI does not seek to resolve cases with serious issues other than the level of contact. These more complex cases can, and still should be, processed in the ordinary way: by Cafcass.
For Cafcass, the benefits are twofold:
(i) cases with no issues other than contact can be taken off Cafcass’ books.
Cafcass estimates this cohort comprises ‘at least a quarter’ of its caseload. The true dividends may be higher. A significant number of cases with allegations of serious concerns may turn out to be cases with no actual concerns: allegations can be generated by the litigation itself. EI would forestall this. Cafcass could be freed of up to two-thirds of its caseload
(ii) Cafcass, which cannot change (see below) would not have to change. It could continue as is: free of the simple cases it does not want - and freed up to deal with the complicated cases it does want.
Cafcass: The Obstacles to Change
Cafcass was founded in 2001. Since then, it has processed something like a million cases about best interests levels of contact without providing its staff or parents with any general pre-court indications of what sort of level of contact represents the child’s best interests in what sort of circumstances.
Enunciation of the first useful principle would mean Cafcass could no longer exist in anything resembling its present form. Unavoidable consequences include:
- the withdrawal of its website and entire suite of literature for private law cases
- consideration of what sort of outcome is right for what sort of case
- a formal mechanism to collaborate with the judiciary on this issue
- preparing and agreeing new guidance
- retraining its workforce
- revised objectives and revised assessments
- installing proper quality control
- reconfiguring all private law initiatives and all private law partnerships
- shifting its focus from last-minute one-off reports to general pre-court guidance
- wholesale reorientation on the basis of reverse-engineering
- new management
and
- accepting that some or most of its reports since 2001 were probably misguided.
For Cafcass to turn itself inside out in this way would merely be the precursor to a proposal for something analogous to the EI reform, opposed by Cafcass since 2003. That is, as soon as Cafcass did have useful guidance to give, it could write that down; and, once it was written down, it could be relayed to parents in advance. The question becomes, how best to do that? A sensible answer is along the lines of the 2003 EI proposal.
CAFCASS Officers
Many individual Cafcass officers do their best, notwithstanding Cafcass’ official ethos, to protect and preserve the child-parent bond. However, their piecemeal efforts cannot make good substantial institutional deficit.
First, they have no material from their employers to tell parents that any level of contact is too high, about right, or way too low.
Second, the written-down guidance that could reach parents months earlier does not exist.