Reform: Words to the Wise

Obstacles to Family Law Reform

The documentary evidence in this section records some milestones from 1996 to today. It is the chronological history of reform: now in reach of success.

Each time reform was thwarted, another “do” or “don’t” was learned for the next attempt. These learnings - itemised below - are Words to the Wise: essential pieces of kit for anyone in this field. They illuminate what to do next - and how that can be achieved - and how it cannot - and who will help and who will not.

The ensuing tab, ‘Issues’, sets out the detail of where we are now: i.e., still poised at the same platform the train should have left in 1996. Here is that jumping-off point, twenty six years ago:

in 1996 it emerged that Cafcass’ predecessor (the Family Court Welfare Service) did not have the basic guidance  (either for its staff or parents) that Cafcass still does not have

The story since then (see the Waypoints) falls into six parts:

1997: the only official guidance, ever, is produced

  • still the document to beat 

98-01: the FCWS’s destruction - for not having guidance

2001: Cafcass’ creation on an identically-deficient basis

2002-3: launch of the EI project to bypass Cafcass

  • via guidance produced by the judiciary

2003-6: destruction of EI by Whitehall / Cafcass

2007-22:  thwarted attempts to reinstate EI

The ‘learnings’ are set out below.

 

The Course of Family Law Reform: Learnings

Cafcass and Whitehall will obstruct reform (and the preparation of guidance) on principle:

  • Cafcass cannot have managerial input to reform

  • The Ministry of Justice cannot have managerial input

The upshot is: reform can only come from the judiciary.

The judiciary and Child-Contact Reform

If guidance (on what parents should do for the best) is to have weight with the courts - as opposed to something to argue about - that guidance can only come from Cafcass (whose recommendations carry weight with the courts) or the courts themselves.

But Cafcass are out of the running. Not only does it not have guidance, it is opposed to guidance on principle. That leaves the courts.

Legislation of Child-Contact?

In theory, new primary legislation might do the job. In practice, even if it did, it brings us back to where we are now: to a need for guidance on what that legislation means in different types of circumstance.

Legislation is a blunt instrument which, at best, will do little more than the basics - maybe, by saying that there should be ‘substantial’ contact in the absence of safety concerns. Given the confusions prevalent in Whitehall, even that is Very Big Ask; and, if those obstacles were overcome, the key questions remain: what is substantial - or adequate - or meaningful contact? And, if that differs from circumstance to circumstance - what circumstances? And what differences do those circumstances make?

Perils of Family Law Legislation

Primary legislation takes years - and the result in this sector is random variations on a theme of more-of-the-same.

The main contributors to an Act’s final shape will be Cafcass and Whitehall. For no particular reason the various Ministries involved in the management of family law think the law already says that contact / parenting time should be substantial or meaningful; and, neither the Departments nor Cafcass realise that Cafcass has no guidance. They cannot assimilate this fact. So, in the view of officialdom, that which needs to be done is done already: there is no need to do it. The central agencies feeding into the legislative process are flying blind - and round and round we go.

____________________________________

Distorted Thinking

 

Things are at sixes and sevens, and have been for many years:

  • Cafcass believes it has the guidance that it does not have

  • Cafcass acknowledges it does not have this guidance

  • Cafcass will not prepare the guidance it does not have

  • Cafcass cannot prepare the guidance it does not have

  • Whitehall says Cafcass does have the guidance it does not have

  • Whitehall thinks Cafcass has the guidance it doesn’t have

  • Whitehall knows Cafcass does not have this guidance

  • Whitehall relies on Cafcass as the ‘go-to-experts’

  • Every Family Justice Review has made the same mistake

  • Official thinking is back-to-front

  • Whitehall has the law back-to-front

  • Whitehall and Cafcass’ vision is more-of-the-same

  • Whitehall and Cafcass can be taken as one

  • Legislation is not needed to change how the law is applied

  • the job can be done by authoritative guidance

  • without authoritative guidance, a new Act would takes us no further

  • the priority is authoritative guidance - attainable now

  • the job is: to devise the authoritative guidance everyone thinks already exists

  • if guidance is to be authoritative, it must be endorsed by the judiciary