The Cafcass blank 2018: the Minister     

It was one thing for Cafcass’s CEO to admit that Cafcass had no guidance on Section 8 cases where access was the only issue. It was another for departmental officials not to go on telling Ministers that it did. This deception mattered: it fostered reliance on make-believe - and that perpetuated Whitehall’s year-by-year mismanagement of the family courts.

This became a single-issue ‘gateway’ point, taken in hand at a meeting with the Minister on 16 May 2018: would her officials now produce the imaginary guidance on which the Section 8 family law system was founded? From the minutes:

Outcome of Meeting: the Under-Secretary said she would… (ii) investigate the extent of any Cafcass guidelines on quantum”

The Official Ministerial admission

Two-and-a-half months later, on 2 August 2021, the Minister confirmed that her officials were empty-handed:

“I have asked to check the position and can confirm that Cafcass does not issue guidance on the amount of parenting time to be apportioned as a starting point in specific types of case”

In logic, this spells the end of the family law system as a coherent entity in both the ways that matter: first, in practical terms, and second, in legal terms.

In Practical Terms: the parents

The fact that there is no guidance means there is no guidance a parent can breach.

The time-line of a separation run from its initial discussion to its settlement at a substantive court-hearing: many months at a minimum, but more likely years.

In all this period, either parent is free to impose, or free to demand, whatever arrangement for the children that they see fit - provided only they parrot their free-for-all ammo - ‘it’s in the child’s best interests’ - as all do.

Throughout this gamut, as things polarise, there is not a word of restraining guidance to dissuade one parent from insisting on a 50-50 time-share while the other applies virtual child-parent severance.

This is a scheme for fomenting litigation.

In Legal Terms: an actual system?

Take any bread-and-butter case - and officers can make opposite recommendations on what the child’s best interests are.

Let’s say, A and B are good-enough parents: there are no safety issues, they live close to each other, have adequate accommodation, both love their child and both listen to their child (and so on). But B has taken the separation badly - and wants almost no contact.

Officer X can ignore Cafcass’ official ethos - and recommend alternate weekends, to start immediately.

Officer Y can take the official line: the level of contact does not matter - but the level of argument does. Officer Y recommends minimal contact until the levels of trust and co-operation between the parents have normalised.

On the Y scenario, the litigation continues - with contact below a sustainable level - for a couple more years before child-parent contact ceases; on the X scenario, child-parent relations continue. One way leads to disputation and child-parent severance; the other to the best practicable arrangement.

The courts rely on Cafcass as the experts for best-interests recommendations in these disputes about the best-interests length of contact; but, Cafcass has no guidance on best-interests lengths of contact. We have a legal system to deliver any outcome on any facts with no overview on what outcome is best for any type of case - because, there are no types of case.

Meanwhile, Cafcass’ CEO confirms that when Cafcass works out the best parenting-time arrangements for the individual child, the parenting-time arrangements for the individual child are not relevant.

The job that Cafcass is meant to do, and the job it does not do, match exactly: re-manifested by Cafcass’s laissez- faire stance at the 2018-22 Family Justice Review (“we need to guard against interfering with the proper discharge of parental responsibility”). Its actual - but overlooked - job is to encourage the proper discharge of parental responsibility.

Maladministration of Family Policy: the Ministry of Justice

A letter issued by a Minister becomes the Department’s position. The Department’s position is now that Cafcass issues no guidance on best-interest levels of contact. This runs on into the current Family Law Review (the ‘Private Law Working Group’ or PrLWG). The PrLWG’s recommendations are based on the unshakable illusion that Cafcass has the guidance it does not have; and a solid bulk of the PrLWG’s membership is Cafcass officers and MOJ officials.

Q: will either Cafcass or the MOJ tell the rest of the PrLWG that Cafcass does not have the guidance which the Group relies on Cafcass to provide?

A: no.

This correspondence is on file. The MoJ has not shared the truth about Cafcass. In addition, the Department has the law back-to-front. It is intellectually disabled.

To read the Minister’s letter click here.

Cafcass’s Imaginary Caseload

The observations in the fourth paragraph of the Minister’s letter are noteworthy. They correspond closely to standard assumptions. Official thinking is back-to-front: no provision should be made for straightforward cases because other cases are complicated.

But (see “Cafcass’ actual caseload”) many cases are straightforward - and stay straightforward; and, many straightforward cases would not become complicated - if these routine cases were not sucked into adversarial litigations.

Cafcass has transited to the wrong ‘model’. As things stand, parents trying to see their children are pathologised: official thinking is all about what to do in the abnormal / deviant / complicated cases - at the expense of cases that are normal, non-deviant and simple - for which no or no proper provision is made.

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The Cafcass blank 2017: the CEO

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The 2002 International Family Law Conference