Cafcass’ caseload: the Actuality

Cafcass: Turning a Blind Eye

The true figure for Cafcass’ contact-only cases, with no safety concerns, lies somewhere between one-third and two thirds of its entire caseload.

Cafcass itself puts the tally at ‘at least a quarter’.

There is reason to think the true figure may be significantly higher.

Whatever the exact figure, no or no proper provision is made for these parents and children, and Cafcass has no plans to make proper provision. In fact, in 2019 Cafcass moved on - from a Sin of Omission to the Sin of Commission. It went on record - as below - with a settled intent to wash its hands of these parents. Its policy is to “guard against” providing the guidance that would keep them out of court.

Cafcass: abnegating its responsibilities

Parliament’s intent in enacting Section 8 has been subverted: the idea of a mechanism that “encourages both parents to continue to share in their children's upbringing, even after separation or divorce” (Hansard) has been switched for a system that promotes child-parent exclusion: via a failure to accord any significant role or standing to Section 8 applicants.

In this process, Cafcass sails close to the wind. Its legislative foundation is Section 12 (1) of the Criminal Justice and Court Services Act 2000:

  • Section (1) (a) imposes a duty to “safeguard the welfare of the children”.

  • Section (1) (d) imposes the duty to “provide information, advice and other support for the children and their families”

Both clauses are honoured in the breach. Cafcass does not provide information, advice and support to families that safeguards the welfare of children. If this was not clear before, it is clear now: from the 2020 ‘What About Me?’ report of most recent Family Justice Review.

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Cafcass: Looking the Wrong Way

It was not until 2019 that Cafcass (estd 2001) took a first rudimentary look at its caseload: see para 25, PrLWG1. It found that normative ‘contact only’ cases formed “at least a quarter” of its caseload.

It is normal to be normal. Separations are not confined to the subnormal. The desire of parents to care for their children is all but universal. The figure of ‘at least a quarter’ sounds low - and it probably is.

Cafcass ‘contact-only’ estimate will only include parents who still have nothing bad to say about each other when they first came Cafcass’ way - after months spent in or approaching an adversarial system - where the incentive is to make case-winning allegations against a former partner.

As Cafcass says (in its next sentence) “the court process risks escalating conflict to a point where it becomes harmful”. The one-quarter-plus estimate merely represents parents who have not succumbed to the pressure to turn interpersonal aspersions and their various grievances into ammunition for a litigation.

Cafcass’ failure to provide the guidance that would settle these cases drives parents into the courts, and that court process generates allegations.

A rational approach to Cafcass’ Other Cases

The actuality is that Cafcass’ caseload inevitably consists two elements: contact-only cases (as above) and cases with avowed features other than just contact.

The official formula for this second category is that “in many of these (cases), there are issues or combinations of issues concerning domestic abuse, parental alienation, harmful conflict and other features such as substance abuse and mental health problems”.

Helpful inroads can be made into this proposition.

Cafcass’ non-contact-only cases

One element in this stream of cases will be disputes that merely present under a false banner of complicating factors, which are not in fact present. Allegations can be and are bigged-up - or are generated entirely for the purposes of litigation - in the period when the parents fester in a guidance-free zone with no holds barred. The reality is, these cases are in actuality ‘contact only’ cases: to be added to the ‘contact-only’ pile.

Second, there are disputes where these complicating features are genuinely present.

However, these complicating factors are not present in isolation: when the complicating factors have been addressed, the level of contact is the issue to which the case returns. If the complications factors are resolved, they too become ‘contact only’ cases.

That leaves a rump of cases with genuine complicating factors that cannot be ‘cured’. Here too, an award of contact (including the possibility of an order for no contact) has to be made. There are two ways this problem can best be approached:

  • If there is guidance on what to do for the best if and when circumstances are favourable, the standard legal principle of proportionality applies: the greater the restriction imposed, the greater the justification required.

  • In the alternative, i.e., in the absence of some such framework, anything goes - including an order of almost no contact for almost no reason.

How an Early Interventions system works

  1. Cases with no issues other than contact are provided with the essential wherewithal, i.e., a best-interest negotiating framework, to resolve their differences out-of-court

  2. Some contact-only parents will nonetheless issue legal proceedings.

  3. EI’s pre-court procedures are geared to deliver best-interests consent orders before the first hearing for cases with no substantive issues. These parents ‘exist the system’.

  4. The residue of cases attend the first hearing:

    • cases with no substantive issues receive summary judgement

    • cases with substantive issues are referred to litigation in the normal way

The recent figures from Israel suggest that EI systems do, as one would expect, produce a substantial drop in litigation. And, when these contact-only cases are taken out of the mix, it is easier to see the wood: there are fewer trees around. In the words of Dame Joyanne Bracewell:

 ‘These cases … are immensely expensive, they produce very little result; they clog up the courts. We waste valuable resources: money and the court’s time.  If only our caseload were approached differently, we could allocate our time better, concentrating on cases which really do need judicial intervention. Many long-running disputes might never become bogged down if there were proficient early interventions.’

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How and Why has Cafcass Ignored its contact-only cases since 2001?

It is quite something for an institution to wait eighteen years before taking a first look at its customers - and then opine they are not worth the time of day.   A number of factors are at play.

1.     Cafcass started off without guidance in 2001.

2.     Cafcass has made a virtue of necessity.

The temptation for Cafcass is to let sleeping dogs lie - by reasoning backwards.

As from its 2001 inception, Cafcass had nothing to offer children at risk of needless child-parent severance:

 - but Cafcass’ remit is the welfare of the child

 - ergo, needless child-parent severance was not a child-welfare issue

An insight into Cafcass’ convoluted thought-processes comes in its Cafcass’ 2019 submission to the Family Justice Review (PrLWG1 Para 25). Having announced that “at least a quarter of applications feature no child protection or welfare concerns” Cafcass explained why this quartile were nothing to do with Cafcass:

“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 takes pole position in these Reviews, so the Review agreed with Cafcass. The realpolitik is: Cafcass agrees with Cafcass - and Cafcass has inverted its responsibilities. It's job, when propviding parents with guidance, is to guard against guidance being provided.

Cafcass: subverting the Children Act

Cafcass’ true job is the opposite of what it says:

- not to

guard against becoming the 'third parent', thereby interfering with the proper discharge of parental responsibility”

 - but to

become the third parent, ensuring that parents do discharge their parental responsibilities.

That is the grist and grind of the Children Act: the law exists to provide a mechanism for Courts to intervene -when parents do not / cannot discharge their responsibilities. True, these ‘contact-only’ parents should not be in court. The way to achieve this is not by not providing them with the guidance they need; it is by providing the guidance that Cafcass does not and will not provide. Many practical factors suggest that it is now almost impossible for Cafcass to ‘change its spots. But, in addition, a deeply-embedded intellectual failure is at play. Cafcass has built itself around a number of obvious fallacies. One is ‘ECID’.

3.     Every case is different (‘ECID’) and other fallacies

This is Family Law’s Golden Rule: the supposed touchstone of its infinite pains to tailor just the right solution for each individual child.

The axiom disintegrates on first consideration:

 ‘True, but that does not mean there are no categories of case’

ECID has been a disabling barrier to thought for decades. It is not a truth, but a truism. Its actual meaning is ‘dunno’. Of course every case is different: but only because every everything is different. Every apple, pear, car, subatomic particle and mobile phone is different, as is every child, every home and every parent.

But that is not the place where thought must end. It is the place where thought begins:

‘what have we here?’

Abstract logicians might wonder if any discipline can function on the basis that each variant of the same problem is unprecedented - with no comparables, precedents, principles, protocols or norms against which an endless succession of variants can be set. Can a system like that be a system?  Is not knowing what to do in any type of case - the same as knowing what to do in every type of case?

Cafcass: Chasing Its Own  Tail

As long as there are no types of case, no-one can say ‘in this type of case, the type of outcome we want is like that’. Parents cannot be advised in advance what to do for the best. No case has like this has happened before. No case like this will happen again. No one (and this is the primary objective of every jurisdiction) has a view on what the right outcome is for the right kind of case.

Tracks of our Tears

A host of noxious consequences flow from this unexamined fallacy: parents cannot receive useful advice in advance, staff cannot be trained, training is useless, any order or any recommendation can be made on any facts, opposite recommendations can be made on the same facts (there are no same facts), recommendations cannot be evaluated, outcomes do not matter, nothing requires proportionate justification, parents have no (significant) rights in their children - as far as seeing them is concerned -  any more the children have significant rights in their parents, case-law cannot apply and the concept of enforcement is rendered a chimera: how can weight repose in the terms of any court order - when that same order could just as well be recast as its opposite?

Cafcass: Nonsense on Stilts

An institution built to these ‘can’t say / don’t know’ specifications, like Cafcass, puts itself beyond challenge and dispenses with the need to provide an actual service. Everything it does, including things it does not do, is in the child’s best interests: by definition. It writes itself blank cheques.

Every case is decided on its facts?’

In this same vein, the idea that ‘every case is decided on its facts’ is merely the first half of a two-part proposition. The second half has gone walkabout.

The fact is that every case, in every legal discipline, is decided on its facts. But, in every other discipline, after the facts have been decided, the decision is made by … applying… the facts… to… a principle.

But, in family law, there is no principle - other than the infinitely-variable ‘best interests of the child’ - which means opposite things to different people - on the same facts (were things otherwise, those people would not be in court).

The actuality is that family law operates on an endless accumulation of (suspect) facts which do not go to the decision, because there is no discernible principle to which they can be applied - in the additional context that as no-one knows what the principle is that should be applied to the facts, no-one knows what facts are relevant. Hence the commonly-observed spectacle of cases proceeding to no effect: with no overview on what the outcome should be, irrespective of the facts.

The Voice of the Child?

Likewise, Cafcass’ status as the ‘Voice of the Child’ comes from the same vacuum. Just as every everything is different, and just as every case is decided on its facts, so every parent should listen to the voice of the child.

But, having done so, a parent’s primary duty is - if called upon - to take a decision in the child’s best interests.

Again, the second half of the proposition is omitted.

The question remains: how to act as the child’s useful voice - in the absence of a view on the child’s best interests?

Contact disputes: the Real Stuff

Of course every solution should be tailored to its own unique circumstances. But, before starting on minor adjustments, it helps to get the solution into the right ballpark. Otherwise it will be in the wrong ballpark.

Any family lawyer can reel off common categories of case - and these categories are very like the categories reeled off by the next family lawyer. Normative disputes with no issues apart from the level of contact will feature prominently on these lists, and this broad category breaks down into obvious sub-categories. Protocols can be set up for the commoner types of case, with provision made (as per the 1997 guidelines - which await their first official consideration) for “contact to be accelerated or retarded, extended or diminished, as circumstances justify.” From these guidelines, or their equivalent, reform flows; in their absence, the status quo continues its endless nosedive.

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Cafcass & Actual Case Outcomes

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Reform: Winners and Losers?