Cafcass: What Went Wrong
Things went off-piste long before Cafcass came into existence. To know Cafcass’ predecessor in the 1990s is to know Cafcass as it is now.
Cafcass: the Fatal Background
In 1996 it emerged that the Family Court Welfare Service - Cafcass’ direct predecessor - had no general guidance either for its officers or parents on family court welfare work.
The FCWS did then what Cafcass does now. Its officers acted as the Court’s eyes and ears. Case by case, as contact applications came in, an FCWS officer was assigned to the case and set out to established its broad background features. Then as now, the officer interviewed the parents; met with the child; and prepared a report for the Court recommending a specific level of child-parent contact. Then as now, this recommendation was the prime determinant of the case’s outcome.
It would be an exaggeration to say that FCWS recommendations were rubber-stamped by the Court. But their reports were overwhelmingly adopted. Applicants arguing in court for more contact than the officer recommended had their work cut out to achieve a marginal increases. For a Court to overturn a report was very rare. That was the custom-and-practice; that was how the family law system ran: the tail of the FCWS wagged the dog of the family courts.
In purely administrative terms, so far far, so good: at least there was a system. But it would have worked better if officers made the right recommendations instead of the wrong recommendations.
A good place to start is that the FCWS did not exist as a distinct entity. It was a collective label appended to a nationwide assortment of 660 Probation Officers on temporary rotation from their corrective work with criminal offenders. The FCWS, at around 5% of the Probation Service budget, had no induction-process: a Probation Officer on Friday, a reassigned Family Court Welfare Officer on Monday. This set-up was long-established by the early 1990s. In the mid-1990s a three-hour familiarisation session was introduced. It was optional. By definition it could not, and in practice did not, include anything useful. The governing adage - ‘every case is different’ - meant that no case like tis had ever occurred before, and no case like that would ever occur again. Training was an impossibility.
Cafcass: stillborn
In theory, FCWS officers were answerable to their local area’s Probation Committee (there were 48, or maybe 52) which had other things on their plate, like probation.
In practice, officers worked ad hoc from scores of dispersed local offices with no central control or defined principles. The Courts paid the FCWS’s reports serious regard; the FCWS’s lack of guidance meant opposite recommendations could be made on the same facts.
No information was available to officers in terms of what case-outcomes were desirable on what sort of facts or what the governing principles were. No document identified the fact that the general run of these cases involved (i) good-enough parents (ii) children and (iii) the prospect of their having a relationship. The service’s 32-page booklet entitled ‘Guide to Family Court Welfare Work’ for reports on contact, residence and shared residence, did not mention ‘contact’, ‘residence’ or ‘shared residence’. Its contents were procedural (use numbered paragraphs; make three copies of your report, file one with the court). The unilluminating terms of the Statute (do what’s right) and the Welfare Checklist (take stuff into account) were recited.
The fact that officers should make recommendations was acknowledged; what these recommendations should be in what sort of circumstances, and why that mattered, was a blank. The FCWS’s entire ‘library’ consisted of a six page-article from the Philadelphia Law Journal from the 1970s in the Home Office’s possession. Page 5 was missing.
In the whole of the FCWS’s history not one report was ever assessed - before being submitted to the Court - to ascertain if the report’s recommendation actually was in the child’s best interests. When these reports were submitted, the Court assumed the child’s best interests was the recommendation: Tweedledum was Tweedledee.
If an officer took the view (and they often did) that the child was well, and well looked-after, an application for proper contact was viewed as an exercise in self-centred troublemaking and needless rocking-the-boat by an aggrieved former parter - who had lost sight of the child’s best interests. That lapse undermined the parent with care-and-control, so the FCWS’s first recourse was a recommendation for no significant change: the child was already perfectly well. There were no welfare issues.
That outcome would almost invariably endorsed by the Courts, which meant - by law - that this outcome (irrespective of what it was) would be labelled as the child’s best interests. Recommendations were self-validating: they were in the child’s best interests by virtue of being made: that was the acid test. Years of bathetic litigation by decent parents in a quest for the first overnight stay (often in vain) were routine.
These parlous truths, as they emerged, were ignored first by the FCWS (no-one was in charge), then the Probation Committees, and then Whitehall.
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Whitehall & Family Policy: in denial
In late 1996, the Association of Family Court Welfare Officers (AFCWO) produced the first set of useful guidelines for family court welfare work.
They would have resolved the family court problem a quarter of a century ago.
These guidelines were neither adopted nor adapted by the FCWS: they were ignored. No one person was in charge of the FCWS to consider them: the Service was managed by 48 (or 52) different area Probation Committees. The FCWS was an organism without a brain. There was no Annual General Meeting. There was no forum for discussion and no papers to discuss. No one office was linked with any other office. The Service had no mechanism for an interface with its own professionals, or other professions, or with parenting bodies, or with parents. Probation Committees were hardly aware there was such a thing as the Court Welfare Service.
The Lord Chancellor’s Department, responsible for the family courts, said this was nothing to do with them: the FCWS was managed by the Home Office. The Home Office said the FCWS was nothing to do with them: it was run by the local Probation Committees. The Probation Committees said the FCWS was nothing to do with them: they could not tell, and did not seek to tell, whether recommendations made by FCWS officers were reasonable. Her Majesty’s Inspectorate of Probation said it was not possible to fault the FCWS: all its recommendations - whatever they were - were in the child’s best interests. All this is on the archival files in crushing detail: everything was nobody’s fault and nobody’s responsibility.
Nonetheless, once the first set of guidelines was on the table, and it was clear (i) they would be ignored and (ii) nothing else was in their place, there was a discernible bone to pick. From 1996 on, the level of complaint from court-users and their constituency MPs - directed at Whitehall, Ministers, the Probation Committees and the legal profession - rose exponentially.
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Cafcass 2001: A Rebadged Failure
On 16 February 1998, against a rising tide of complaint, the FCWS’s impending disbandment (and severance from the Probation Service and the Home Office) was announced. It would be taken over by the Lord Chancellor’s Department, now the Ministry of Justice.
Replacing the FCWS entailed its merger with the guardians ad litem and the Children’s Branch of the Official Solicitor in a workforce assembled from 113 groups with 57 sets of pay and conditions. That was a lot for Whitehall to do; and that was done.
But the FCWS’s originating defect did not receive attention.
Dozens of LCD officials were fully aware of the FCWS’s deficit during the period from 1998 to 2001 when Cafcass was in gestation. The first useful step remained untaken: on 1 April 2001 the untrained staff in the FCWS were transferred into Cafcass without (re)training.
The theological equivalent of this failure - it was deliberate policy - is Original Sin. The Family Division’s die was cast.
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Cafcass since 2001: A Rebadged Failure
The untrained FCWS officers who transferred into Cafcass in 2001 arrived with their existing caseload of ongoing disputes – under the pressing imperative to process these cases as untrained Cafcass officers - in the same uninformed way they had as untrained FCWS officers. No provision was made for their training or induction: no such material existed (in this jurisdiction).
The deficit was never made good.
Rather than taking time to figure out what its job entailed (Q: ‘What are the child’s best interests - in terms of post-separation parenting time - and how do we best achieve that? ) Cafcass took to issuing clouds of corporate governance: its standards were to have high standards.
Cafcass paved over its zones of ignorance with empty feel-good brochures and an empty website (notionally about Section 8 disputes) that neither mentioned the issue in dispute nor suggested how it should best be settled. At the time of its 2001 inception there was not a word of recognised guidance in the judicature on what a proper child-arrangement might be - in terms of contact - for decent, or adequate, or ‘good-enough’ parents. This blank was unobserved. It carried forward.
On the other hand, there was an abundance of child-protection / public law material, ripe for further development, on what to do about indecent, inadequate or ‘not-good-enough’ parents.
Cafcass’ path of least-resistance was to leave ordinary parents to one side, in a quest to identify serious issues: other than the child-welfare issues that might be involved in the loss or exclusion of a fit and loving parent.
Two decades on, Cafcass has yet to trouble the scorer.
In many ways Cafcass is worse than the FCWS. The FCWS’s lack of any training meant its officers were not trained to do things wrong. Whereas, the full weight of Cafcass’ training and procedure in disputes about the level of parenting time now goes to turning a blind eye to the issue it is meant to resolve. See Actual Case-Outcomes and Cafcass’ Actual Caseload for the results.
Doubling Down
Cafcass: An Immovable Blockage
In terms of guidance on the issue in dispute, we are where we were in 1996 - nowhere - which is where we were in 1989. In fact, the problem has solidified and enlarged:
Whitehall regards Cafcass, its incomplete creation, as complete experts for this sector; and neither the fact, nor the significance, of the omission registers with Cafcass.
The one agency convenes and manages the Family Justice Reviews; the other populates those Reviews as experts.
Official thinking has not reached 1996.
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Cafcass and Family Policy: Churning
On the scenario imagined by Whitehall, Cafcass has the guidance that it should have. After all, that is its job.
So there is no need to bring that guidance into existence. The various ‘Family Justice Reviews’ roll the central omission forward unaddressed; the capacity for sound planning is skewed; and dispositions for the coming decades are made on foundations that do not exist.
The latest 2018-22 Review, billed as a programme for ‘radical change’, is a programme for more of the same. Its every initiative depends on the assumed existence of guidance that does not exist. The debris from this fictional reality becomes the start-point for the next review, and so on down the decades.
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Cafcass’ Guidance for Parents and its Officers: A Review
Over the years, Cafcass has produced many hundreds of pages of material. Throughout, the central issue has never been never mentioned.
Even the words ‘contact’ - or parenting time - or their various equivalents - are hardly mentioned. The idea that this could become an issue is not mentioned. Even the idea that contact should be arranged receives no more than a handful of isolated and very peripheral acknowledgements (assessed below). The idea that these arrangements might be contested, and give rise to legal proceedings, escapes remark.
In straightforward cases with no safety concerns, the level of contact / parenting time will be the only issue in these disputes; in more complicated cases, it is an issue to which the case returns. An assiduous reading of Cafcass’ entire suite of literature discloses no indications on best-interests levels of access / parenting time or the merits or sustaining significant child-parent relations. The length or frequency of ‘access’ is not mentioned as an issue that may trigger a dispute. There is no suggestion that irresolvable disagreements about ‘how much can I see the kids?’ might arise. There is no indication of why this might matter, either to parents or children.
Parents could read Cafcass’ documentation end-to-end without discovering that there were contact disputes about best-interests levels of access.
Nothing in all Cafcass’ literature clarifies whether - or when - child-parent involvement is best met by a 50/50 time-share, or, by almost no parenting time at all, or, by somewhere (where?) in between.
The agency’s intellectual superstructure is missing.
The Full Extent of the Cafcass’ Omission
In addition, the agency’s infrastructure is missing. There is nothing on the role of parent-child contact in maintaining or developing a child’s attachment to the parent who leaves home; and no indication that the maintenance (or needless loss) of that attachment might be significant. There is nothing in Cafcass’ material to suggest the level of child-parent contact is a child-welfare issue.
Cafcass: in the Wrong Ballpark
Cafcass’ guidance reaches no further than soft gateway topics - along the lines that divorce is a winding road, conflict is bad for children - and contact should be in the child’s best interests. These are matters not in in dispute; they are things everyone agrees. In the same uninformative vein, parents are reminded that their relationship has changed. They should treat each other with respect. At moments of confrontation, a Top Tip is that parents should breathe deeply - through their diaphragm - before asking themselves, ‘What should I do?’
This general scene-setting is helpful, as is the reminder that parents should - as always - listen to the voice of the child.
However, the issue which is in dispute - on which the Court rules, and on which parents seek the Court’s ruling - is the best-interests level of parenting time. To tell parents, arguing about the best interests level, that this level should be in the child’s best interests, adds nothing.
It is unlikely that any of several million Section 8 parents did not claim their diametrically-opposed proposals were in the child’s best interest.
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Cafcass: nothing comes of nothing
Here is a detailed review of Cafcass’ offerings on its website and in its literature. Parents (and staff) who peruse them are none the wiser.
A general analogy lies with a Highway Code devoted to driving ‘well’, by ‘thinking’ about what to do, where all Rules of the Road - and all speed limits, and whether to favour the left or the right - are omitted.
Cafcass’ flagship: its ‘Operating Framework’
From 2012 to 2021 Cafcass’ flagship was its ‘comprehensive’ 130-page Operating Framework.
Contact, and contact issues, and the possibility of an attachment to the absent parent, do not feature.
There is nothing about patterns of best-interests visitation, or when or whether there should be overnight stays; or, the age at which they should start, or other preconditions; and nothing about weekends, returns from school, holidays, half terms, handovers, travelling time, late returns, clothes, the sharing of toys - or age and developmental issues. The following words do not appear as far as contact or parenting time visits are concerned: Christmas, overnights, collection, handover/s, pickup/s, alternate weekends, apportionment, visit/s, returns, stay/s, hours, length, duration, frequency, or schedule.
There are very occasional references to the existence of contact as a concept.
In this vein, page 9 notes that ‘contact between bothers and sisters’ can be positive, page 17 notes that ‘parents can be afraid they will lose all contact’ with their children. Page 17 says the UN Charter confers a ‘right to contact’ [italics added]. Page 19 says, ‘Much of our work is about assessing the benefits and risks of contact for a child’.
No more is forthcoming. Although this topic is said to be covered ‘in more depth’ at Sections 4 and 5, Section 4 concerns public law, i.e., serious neglect / deviance, and Section 5 has nothing apart from a few scattered mentions. Page 55 says, supervised contact sessions would normally ‘if they go well’ lead to an increase in time. Para 5.26 cautions that parents should not think of ‘spending time’ with their child as a right (contact may be ‘indirect’); and, it reminds parents that parenting-time flows from the level that is in the child’s best interests. Para 5.27 cautions against assuming that a low level of contact will be enlarged. The Glossary at page 128 confirms that contact-visits may be ordered. The fact that contact centres and supervised contact exist is acknowledged. Para 5.26 says that indirect contact e.g. on social media can be ‘anxiety provoking’. A half-page essay also at page 56 identifies four different types of case [e.g. ‘conflicted: 55% of cases’] but without indicating what should be done about parenting time in any of them.
Page 8 has a one-off reference to ‘restoring key relationships with the child’ among 20 other bullet-pointed objectives. The idea is not amplified or defined. There is nothing to say that the parent who leaves home is intended.
There is nothing more.
Cafcass’ Child Impact Assessment
The Operating Framework was withdrawn in October 2021. That leaves the two-page Child Impact Assessment Framework (‘the underlying principles of a cafcass private law assessment’). No reference to contact or parenting time is made other than a correct summary of the law: contact may be direct - or indirect.
The CIAF’s enjoinders to “understand and analyse the child’s emotional and psychological world” do not include the short- or long-term impact of impoverished child-parent relationships.
The idea of ‘restorative justice’ is given shape as the restoration of “normal health and development; the ability to concentrate and learn at school and not to be pre-occupied by conflict at home”.
An assortment of rapid-fire ideas like ‘lived experience’, ‘tools’, ‘pathways’, ‘dynamic assessment’, ‘tactics’, ‘mindfulness’, ‘impact’, ‘spectrum’, ‘narratives’, ‘differential impact’, ‘ethnicity’, ‘relationships’, ‘religion’, ‘gender neutrality’, ‘freedom from bias’ and ‘environmental factors’ appears in list-form alongside concepts like victims, perpetrators, conflicts and abuse. The bases are covered to rapid and indeterminate effect with no particular indication of what to do. This is about assessing - almost everything - not about what to do decide when case has been assessed. Neither the existing length of parenting time, nor the best-interests length of parenting time, are mentioned as factors. The preservation of child-parent attachments is a ghost at the feast.
The direction of travel is static: open-ended assessment for the sake of open-ended assessments. The idea of ‘how things can be improved’ and ‘positive change’ for parents and children does appear; the idea of changed arrangements does not. There is nothing to exclude the possibility (strongly advanced by Cafcass elsewhere) that positive change is - to Cafcass’ way of thinking - imparted merely by Cafcass’ presence as a psychotherapeutic ear while the assessment proceeds. The ethos is, ‘We work to change the way family members think about each other’ (Operating Framework, at the head of ‘Private Law Cases’, page 49 [bold added] )
Education for Parents
Page 4 of the Separating Parents Handbook (56 pp) acknowledges that ‘decisions’ may have to be made about ‘how often’ the children see each parent’. What these decisions might be in what sort of circumstances is a blank. There are a couple of references to ‘two homes’, but no suggestions on how often or for how long the parent or the other home might be visited or what role those visits might play. The thrust is, ‘try not to get into an argument with your partner’.
The Parenting Plans (28pp) include the suggestion at page 9 that an early agreement - on how much time the children can spend with each parent - would be useful. But the level of argument, not the level of contact, is the issue.
The Parenting Plans promote the idea that separating parents can be helped by writing freeform essays (space is provided) on a wide spread of subjects like ‘Are there any important rules?’ Numerous topics are listed for open-ended argument: the idea of allocating time (no indications provided) appears at page 22 as an item alongside 30 or 40 other possible flash-points. There is no indication either that the length of parenting time might be a particular bone of contention; or, how divergent proposals should be resolved.
In addition, a high hurdle must be surmounted before a separating couple can engage with a Parenting Plan. Cafcass is clear: letting a child see a parent exposes that child to risk. The overriding concern is “Do you believe that any person who is in contact with your children, or might be in the future, will put you or your children at risk of harm?” Half-a-dozen types of risk are listed together with a sweeper-up: ‘any other safety or welfare concerns’.
There is no counterbalancing mention of an upside: the benefits that might flow from the continuance of meaningful child-parent relations.
Cafcass’ Most Specific Advice: Take a Deep Breath
For parents who do proceed with their plan, pages 12 and 13 of the plan provide Cafcass’ most specific guidance on how best to approach the decisions ahead, under the heading “The skills to get it right”:
“Stay calm:
• Relax your shoulders.
• Breathe through your diaphragm rather than shallowly through your chest.
• Take deep breaths and deliberately breathe more slowly
There are similar enjoinders, amplified at page 13:
“When there is deadlock, though you will hope that the other parent will come round, take a small time-out.
• Take a deep breath, stop, and think: what can I do about this situation?”
The two-page Parenting Plan Guidance refers back to the parenting plans, which “help you develop the skills that you need, starting with staying calm and listening to each other”.
Other Offerings
Cafcass’ module on Co-Parenting defines co-operative parenting as a friction-free arrangement irrespective of restrictions on parenting time. On Cafcass’ view, co-operative parenting is consistent with a prohibition on almost all parenting time.
The module on Parental Alienation acknowledges the existence of parental alienation (half-a-page). It is hard to see how Cafcass can engage usefully with distorted child-parent relationships without a view on the benefits if any of undistorted child-parent relations.
The link entitled ‘Improving child and daily arrangements’ leads back to the inert information courses. A new two-page document for professionals entitled ‘Good Practice Guidance Note: Contact’ conflates private law with public law, often in the same sentence. As ever, it says that ‘any contact recommended should be according to the best interests of the child’. Paragraph 9’s provision that the child-arrangement should maximise the involvement of both parents is counterbalanced by the proviso that disruption should be minimised.
For the sake of completeness, the new overarching document agreed for the Private Law Programme leaves contact in exactly the same place: nowhere (‘How much involvement a parent should have depends on the individual child’).
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Instead of protecting the child from the real risks on divorce or separation, Cafcass’ focus has drifted into ersatz child-protection, typically in the absence of material concerns.