In early 2001 Whitehall’s replacement for the FCWS - ‘Cafass’ - was about to open its doors. Three years of preparation by the Lord Chancellor’s Department was about to come to fruition.

Nothing had been done to address the gaping void that necessitated the FCWS’s disbandment. The same old defect at the FCWS’s heart would roll forwards into the new heart of Cafcass…

Sixteen years after Cafcass opened its doors in 2001, EI was into a second year of Parliamentary manoeuvres. The problem was, the true position was so hard to believe. Surely Cafcass could not have been paid the better part of £2billion over 16 years to provide guidance it did not have - and had no intention of producing?

It was one thing for Cafcass’s CEO to admit that Cafcass had no guidance. It was another for officials not to go on telling Ministers that it did. This mattered: it fostered reliance on make-believe. This became a single-issue ‘gateway’ point at a meeting with the Minister on 16 May 2018: would her officials now show her the imaginary guidance on which the family law system was founded?

Within a few months of setting up shop, it was clear that Cafcass would carry the FCWS blank forward indefinitely. Nothing had been achieved by the FCWS’s disbandment. It was simply rebadged as Cafcass. But by then the unresolved problems with the FCWS/Cafcass were so widely canvassed that the desired result - guidance - could be achieved another way.

Delegates at this judicially-chaired seminar included three Lords of Appeal. A simple EI protocol was presented and endorsed…

EI was easy and quick to do and did not cost much money. It promised great gains in return for great savings. This meant that (unlike many other projects in Whitehall) EI was likely to happen and there would be no problem with funding.

In other words, EI was a sitting duck…

This was the EI flowchart put to the Minister at his first meeting with the NATC on 3 November 2003. At that stage the NATC was unaware that the Minister was out of the loop; blueprints handed to him were not passed on by his officials.

A fine and dignified funeral oration.

This is the 2006 amendment to legislate the EI pilot into the 2006 Children and Adoption Act. The Conservatives were in opposition; it was voted down.

As far as Section 8 reform was concerned, the political arena was now dead. It would stay dead until a change of Government. Meanwhile EI lived on in the Shadow Government.

In 2010 the Conservatives came to power with EI as its agreed Section 8 initiative.

Fate had other plans. The 2010 election did not deliver a clear win. The Tories entered into coalition with the Liberal Democrats. The essence of the powershare was that one minister in five went to the Liberals. This entailed a wholesale reshuffle of intended ministerial portfolios. The designated MOJ Minister was reassigned to the Foreign Office, replaced by an unbriefed incomer who duly fell captive to departmental priorities: it was time for another family justice review to enlarge the mistakes of the previous review.

As recounted in the next section, this review - the Norgrove Review (which took things forward to 2014) - came into being saddled with an entirely new difficulty. As was customary, Norgrove proceeded on the standard disabling basis that the Court’s experts, Cafcass, had perfectly satisfactory guidance both for its staff and parents on what the child’s best interests were. This error was and is sufficient to skew the thinking of any review body. But now the department introduced a new and even larger misconception.

Departmental officials got the law back to front.

Norgove started work in a new context where not only was the machinery dealing with the Act imagined. The law was imagined too.

To read the 2006 amendment. Click here

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Whitehall and Cafcass will always oppose EI. But almost any package for reform is bound to pass through their hands at some stage; any transit involving either agency in any capacity is (in the absence of dramatic change) almost certain to put an end to progress. Any new amendment along these 2006 lines needs rewording in the light of hindsight to ringfence Cafcass and Whitehall from managerial / advisory input.

The Department’s reflex imperative from 2004-2006 (‘get rid of EI’) tied knickers in a twist. This was the prelude to a Lost Decade or three. A profound mistake, injected into the system in 2004 and disseminated throughout government, did deadly work. It still does: the error remains unexpunged.

This is relatively advanced stuff, but worth a go. Two important points are clarified:

(i)  common misinformation about the ‘Australian Experiment’

(ii) the perils of primary legislation

This 2017 presentation (‘Family Law Reform Made Easy’) does what it says on the tin. A couple of pages are included on research into actual case-outcomes. No significant progress has been made 1996-2020.