Cafcass Reform: Words to the Wise
Obstacles to Family Law Reform
The documentary evidence in the previous tab ‘The Road to Reform’ charts the interventions by Whitehall and Cafcass since the 1990s that have ensured no progress was made over the years. Each time reform was obstructed, another “do” or “don’t” was learned. These learnings - itemised below - are Words to the Wise: essential pieces of kit for anyone working 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. Nothing is what it seems. This is the jumping off point:
in 1996 it emerged that Cafcass’s predecessor did not have the guidance that Cafcass still does not have
Thereafter, as per the Road to Reform:
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 the production of judicial guidance
2003-6: destruction of EI by Whitehall / Cafcass
2007-22: attempts to reinstate EI
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 largely random.
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.
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Distorted Thinking Within the Family Law System
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
Things are at sixes and sevens, and have been for many years:
