Origins of Section 8 Reform

In 1996 it emerged that the Family Court Welfare Service (at that time the Section 8 equivalent of Cafcass) had no guidance either for its officers or parents on what the ‘best interests’ outcomes were for children involved in these disputes. This problem has never been addressed by Whitehall (or Cafcass).

The result is that Cafcass suffers from the identical 1996 deficiency that necessitated the FCWS’s disbandment.

This historical background is considered at ‘the fatal background’ under the tab ‘Cafcass - what went wrong’. The practical consequences merit attention. The lack of guidance goes to the heart of things.

No Guidance on Parenting Time = Preserving the Status Quo

In the absence of some idea of what level of contact / access would be about right for any type of case, no level of contact - no matter how low - can be too low when set against a level of best-interests contact that does not exist.

The level of parenting time becomes an irrelevance.

The idea that parenting time is ‘restricted’ cannot exist.

All material child-parent contact can be eliminated for no material reason.

Further, and in intellectual terms, the concept of family justice becomes inutile. The child-parent bond is not a matter of consequence; the child-parent bond does not merit protection; the foundation on which the Children Act is believed to repose has no counterpart in reality.

Further, and in practical terms, an idea of what might be a better level of contact - for that type of case - does not exist either.

So FCWS recommendations focussed around the principle of ‘no change’, reinforced by the notion that any upward adjustment of contact (no matter how low the existing level) would not contribute to the child’s welfare.

Family Law: mistaking well for welfare

On this scenario, the natural recourse for an FCWS officer was (as it is for Cafcass officers now) to check for any recognised welfare concerns with the child and the child’s current upbringing - like DV, substance abuse, mental problems or neglect. If yes, that received attention or at least comment; if no, there were no welfare concerns about the child - and no apparent reason for the Courts to intervene. The child was well - and well looked-after. Everything could and should continue more-or-less as it was.

That was the template for FCWS reports for 15 or 20 years, through several hundred thousand cases: no upside was attributed to seeing the other parent. There was no guidance to that effect; the focus was on the child, not the applicant parent; the applicant might be upset - but the child was doing well - or as well as could be expected.

For the FCWS the ‘live’ question was whether there might be a downside to any increase in contact - as the resident parent alleged. If so, any detriment - including any perceived detriment - would outweigh a benefit that did not exist. As with Cafcass, some experienced officers found their way to a better construction of these cases; they did so without official support.

The ‘best interests’ of the child: a retrospective label

Every recommendation in these FCWS reports, made on the basis of this guidance-free formula - typically for continuance of the status quo - was labelled ‘in the child’s best interests’. A side-effect was that the rights of the child, in terms of actually seeing their other parent, were not considered: there were no such rights.

The lack of any framework against which an officer’s recommendations could be evaluated meant that their recommendations, no matter how extreme, did not require proportionate justification. Flat assertions by an FCWO (‘x is in the child’s best interests’) sufficed.

In favourable cases, where the FCWS excluded every prospect of potential upset, a minor uplift to the level of contact that had triggered the issue of proceedings might be recommended: subject to ‘careful monitoring’ for signs of distress.

Family Court Welfare Officers: Professional Standing

The recommendations of a Probation Officers, when acting as a Probation Officer (a job for which they were trained) are often disparaged by the judiciary. But the judiciary regarded their family court recommendations as Gospel - when issued in the capacity of untrained welfare officers (in hindsight, a possible explanation is that (i) the judiciary themselves were not trained in what to do in what sort of case and (ii) they were only too grateful to have someone on hand who claimed they did).

The Service’s entire output in terms of recommendations made was an unknown. It kept no consolidated records. The FCWS just did what it did, whatever that was, under the usual banner that, whatever that was, it was the child’s best interests: by law. The judiciary had no way to go behind that. There was no case-law (‘every case is different’) and the FCWOs were the court’s recognised experts.

To a significant extent the Service ran on terror. To criticise, or argue with, a welfare officer invited retaliation (and down-marked access) as a trouble-maker.

That was how things were until 1995. To see what happened next, click here.