Cafcass - the Void — New Approaches to Contact

Cafcass is the foundation of the private law system for children.

Cafcass was established by Act of Parliament on 1 April 2001. It is an executive non-departmental public body. It has an annual budget of around £140 million; approximately two thirds goes on private law Section 8 cases. Some 1400 Cafcass officers in all process some 50,000 incoming disputes about the best-interests levels of ‘access’.

During the months before the court hearing, Cafcass’ role is give parents advice on how best to resolve their differences; and, if / when no agreement is forthcoming, Cafcass advises the Court on what order to make. Each individual Cafcass recommendation is embodied in a lengthy one-off report that typically arrives shortly before the hearing.

Cafcass cannot discharge its duties. Cafcass is simply the unaddressed flow-down of its benighted predecessor, the Family Court Welfare Service. The FCWS was comprised of Probation Officers versed in corrective work with criminal offenders. The Service was disbanded in 2001 in the wake of the 1996 discovery that its 660 ‘Family Court Welfare Officers’ had no training in any aspect of family court welfare work, the merits of a child-parent relationship included and best-interests levels of contact / ‘access’ included.

In 2001 Whitehall transferred the untrained FCWO officers into Cafcass without retraining.

The 1980s FCWS blank continues to this day.

Its officers - ‘family court advisors’ - makes case-by-case recommendations on the outcomes of these cases. Their recommendations are typically adopted by the family courts. Cafcass are the Courts’ expert advisors.

In theory, Cafcass is the repository of the nation’s wisdom on the best upbringing for the children of separation.

In fact, after two billion pounds, and 20+ years, and several million ‘customers’, Cafcass has nothing to say on the issue in dispute.

Cafcass’ guidance does not go beyond the jumping-off point that the length of parenting time (or contact) should indeed be in the child’s best interests.

What that means is undefined: it is for the parents to sort out.

That is Cafcass’ stated official position. On the argument driving parents to court - ‘how much can I see the kids?’ - Cafcass is a blank. Cafcass sees its job as not doing its job.

___________________________________

Cafcass omits the child-parent attachment from its construction of cases about the wisdom of dispensing with the child-parent attachment. The idea does not feature. Contact itself is hardly mentioned: the idea that there might be a ‘best-interests’ ballpark level of contact for any type of case is not on the horizon. The idea that the level of child-parent contact has a bearing on child-welfare is absent. Cafcass looks the other way: not at what to do with its throughput of decent parents seeking to maintain a proper relationship with their child, but on protecting children from parents who are inadequate or abusive. No or no proper provision is made for private law cases without a public law dimension - where the parents are adequate and there is no abuse. Cafcass has no recorded thought on what to do about child-arrangements in normative cases. It has yet to commit the first word to paper on the issue in dispute.

Cafcass: The Core Problem

As long as Cafcass’ central defect is overlooked by officialdom, coherent thought about improving the family law system is not possible. To date, the Cafcass problem has been overlooked for 21 years.

The Cafcass problem is at the heart of government:

Cafcass is Whitehall’s flawed creation; and Whitehall regards its incomplete creation, Cafcass, as the incomplete experts for this sector; Cafcass concurs
Whitehall convenes and manages the nation’s periodic Family Justice Reviews. Cafcass populates those reviews as experts.

Thinking in officialdom has not reached, and cannot reach, its 1996 starting point. The facts are:

there is no guidance on the best-interests length or frequency of parenting time
no guidance is contravened when one parent eliminates all worthwhile child-parent contact for no particular or proportionate reason

The ‘best interests of the child’?

The much-vaunted concept of the ‘best interests of the child’ does not help: the idea is not defined. The missing definition, being missing, does not include the idea that there should be worthwhile levels of contact.

Cases said to be decided in the best interests of the child are decided on the basis that the best interests of the child can include the elimination of almost all contact for almost no reason.

The demise of worthwhile contact spells the demise of worthwhile child-parent relations.

Cafcass does not take this into account as a child-welfare factor. In so doing, it flies in the face of orthodox opinion.

______________________________________

Cafcass: a Job Forgotten

The abiding trigger-points for argument after parents separate are

money

children

The ‘how much, when, and how often’ of the money / property is not for Cafcass. Its remit, in Section 8 cases, is the ‘how much, when and how often’ of the children, i.e, the ‘child arrangement’. That is a function of the schedule of parenting time and the arrangements for access.

But Cafcass has nothing to say on this either.

In all its literature, contact disputes (or parenting time disputes) are never mentioned as a source of likely dissension. There is no mention of how much parenting time should be agreed in what circumstances.

But that is the dispute.

_______________

Cafcass: the exception that proves the rule

To be clear, Cafcass does indeed prepare a one-off written report on the duration of parenting time: for each individual case. But this recommendation is:

(i) last minute, typically on the eve of the eventual hearing, after months spent in the litigation process

(ii) limited to that particular case and no other

(iii) secret

Nothing about best-interests levels of contact is available from Cafcass until then. The information and guidance that could be usefully conveyed, on the issue in dispute, months before the hearing, is not conveyed: - because, Cafcass has no information or guidance to convey.

________

In terms of general advice for parents - in their hundreds of thousands - as they approach the court system - and as they become embroiled in it - and as they decide their children’s future - and as disputes solidify - and polarise - Cafcass has nothing to say on the best-interests length of access: not a word on how much; or when; or how often; or, how that bears on the child’s best interests; or, whether it matters.

This is a not a question of inadequate advice, or wrong-headed advice, or advice that could somehow be improved. It is a zero. This deficit escapes remark at the same time that Cafcass is treated by Whitehall as the go-to agency on this exact issue. From Family Law, June 2020:

A problem: no guidance

Section 8 disputes include a ruling on the ‘best interests’ length and frequency of parenting time; but, under the current system, neither Cafcass nor any other agency has authoritative pre-court advice on this issue.

This central omission has continued almost wholly unremarked since it was inherited by Cafcass from the Family Court Welfare Service in 2001.[1] Minister of State for Justice Lucy Frazer MP QC confirmed in 2018:

‘I have asked to check the position and can confirm Cafcass does not issue guidance on the amount of parenting time to be apportioned as a starting point in specific types of case.’[2]

This fact is evident from Cafcass’ website, its Operating Framework and its literature. It was confirmed by Cafcass’ long-standing CEO.[3]

It has not been acknowledged by any Family Justice Review since the 1990s, the current review included.

________

Cafcass & the Overlooked Basics

The Section 8 issue - on which the Court rules - and on which parents seek the Court’s ruling - and on which Cafcass advises the Court - is the best-interests level of contact.

In these cases, the court awards a specific level of parenting time to the applicant parent: so many hours, on such-and-such a day, to re-occur as specified (e.g., ‘every Saturday, 4pm to 6pm’); or, so many overnight stays, (e.g., ‘to stay overnight on alternate weekends, collect 6pm Friday, returns at 6pm Sunday’). That level of parenting time (or contact) is the case’s outcome. It is expressed in a court order reducible to a certain number of hours a month.

Awards can range from a maximum of 84 hours a week (a 50/50 division of time) down to 1 hour a month or less: i.e.,

from immediate reinstatement, or more, of the child-parent relationship

to enduring child-parent severance

The lack of guidance means there is nothing to prevent opposite outcomes on the same facts. Until the advent of that last-minute final report, at the end of a litigation, parents do not know what they are meant to do about the length of parenting time / contact.

In addition, when the Cafcass recommendation finally arrives, it originates from an officer with no training on what the recommendation should be.

If Cafcass had a view - even in broad terms - on what (and why and when) its officers were meant to recommend in the child’s best interests, it could distribute that same information to parents - in advance - in leaflets, handouts and via the web. But Cafcass doesn’t. So it can’t. Disputes that could be stopped before they start cannot be stopped.

Cafcass’ Central Omission

Officialdom will not take this on board. Cafcass is assumed to have general guidance on best-interests levels of contact for various types of case, including cases where the level of contact is the only issue in dispute.

It does not. For Cafcass, the idea that the level of parenting time has a bearing on the child’s best interests is not a recognised concern. There is nothing about restoring or protecting the child-parent relationship with the parent who leaves home. There is no discussion of how this might be promoted by allowing significant access, or whether and when such an undertaking is worthwhile. Save for one distorted mention (see below) the existence of the child-parent attachment with the non-resident parent is not on the table.

Cafcass: Own Goals

The concepts central to parenting time disputes, and child-parent relations. and the upbringing of children, and to family life generally, are virgin territory. This is confirmed in writing by Ministers and Cafcass. It can be corroborated by a brief review of Cafcass’ material. Cafcass is blind to cases between decent or ‘good enough’ parents that only involve the level of contact: i.e., it is blind to a substantial (and perhaps the main) component of its work, as well as the reason why Section 8 was enacted -

"New orders are introduced to reflect our emphasis on encouraging parents to participate fully in the child's upbringing"

The Minister, introducing the Bill, 27 April 1989

______________________________

The Cloud of Unknowing

A very careful reading of Cafcass’ entire suit of literature - putting together an isolated phrase here, and an inference there, and an odd sentence, or maybe two - discloses the formal position: there should generally be contact - but, no matter how low.

The position is that contact / access need not even entail seeing the other parent. Any level of ‘involvement’ will suffice. Contact (or involvement) restricted to the occasional phone-call is still contact (or involvement). If contact / involvement / parenting time exists - no matter how vestigial - the box is ticked. Its level is not a child-welfare issue.

The substance of the case, and the substance of Cafcass’ job, has been pushed to one side. Cafcass ‘says it focuses on the child’ - but without considering the level of contact.

Cafcass: Flying Blind

In the real world, that is a contradiction in terms - and really quite hard to understand. A helpful way to mimic Cafcass’ institutional mindset is to imagine that the level of contact is purely a concern of the applicant: merely, the personal preoccupation of the parent who brought the case: he or she feels miffed.

By contrast, Cafcass (according to Cafcass) speaks for the child. So the level of parenting time can and should be safely be parked – while Cafcass embarks on an assessment of the welfare of the child - the level of child-parent contact excluded. That is, the substance of the case is omitted.

What to do instead?

The Template for Cafcass’ Assessments

Cafcass sees itself as a child-focussed agency, so the first priority of these assessments becomes to ensure the child is protected from the many other risks that Cafcass does recognise, including the risks or disturbance that might be created - or the other parent says will be created - by seeing the applicant.

Hence Cafcass’ focus on largely-fictive ‘safeguarding’.

These concerns are bigged up to be unfurled in largely-specious inter-parental litigations. Meanwhile, the idea that the impending loss of a child might be a proper trigger for an application to court is not on the horizon. Cafcass sees its job as unearthing the underlying deviance, or desire-to-control, or the applicant’s other failings, that might have led to an application for normal contact being opposed.

Cafcass: mixing ‘well’ with ‘welfare’

On this mindset - and in disputes where there are no safety concerns, and contact / parenting time is the only issue, and there is no whiff of anything amiss - Cafcass assessments tend to find that the child is perfectly well and well-looked after.

What could be better than that?

On Cafcass’ official construction, maintenance of the child-parent attachment is not relevant. So, that aside, in these cases about maintaining the child-parent attachment, as far as Cafcass is concerned there is no reason for Cafcass or the Courts to intervene: all is well. There are no welfare issues. The applicant’s concerns – raised under the supposed banner of the child’s best interests – were misplaced. For Cafcass, there is nothing for that parent to worry about. The child is coping.

Cafcass: promoting static litigation

At this stage, with the child’s welfare omitted, Cafcass’ attention may revert to the reason why the case came Cafcass’ way. The role played by the applicant’s misguided but counter-productive desire to see more of, and help raise, the child must be acknowledged. But: :

Cafcass attributes no benefit to increased or meaningful child-parent contact
Cafcass has no view:
- on what level of contact would be best for any type of case
- on whether any level of contact would be better than the status quo

On this faulty construct, any perceived detriment incurred by increasing contact will outweigh a benefit that does not exist (the corresponding legalese is, “a presumption that does not exist can be defeated by an objection of no weight’).

Contact may be nudged forwards, typically by minor increments, but litigations tend towards the static: if it’s not broke, don’t fix it. The real risk faced by the child – the loss of a parent and the loss of familial relations – is conjured out of existence. Meanwhile, in its place, another risk looms.

Cafcass: Going Backwards

Cafcass’s official position is that the level of parenting time (or the near-total loss of a parent) is not a child-welfare issue - but the level of argument most definitely is. Contact is relevant only in so far as it provokes conflict.

‘Conflict is bad for children’ - and, on Cafcass’ mindset, the applicant’s desire for more contact is the driver of noxious conflict - even if almost all contact has been stopped for almost no reason. Otherwise, the parents would not be in court.

It is perfectly true that parental conflict is bad for children. But for Cafcass that is the governing factor - because Cafcass does not recognise the level of contact is also a factor in child-welfare. So the desired outcome for Cafcass becomes to persuade the applicant not to damage the child further - by persisting with an ill-advised application for adequate contact. On Cafcass’ one-horse scenario, the applicant should put the child first - by abandoning the misconceived quest to maintain meaningful child-parent relations.

The true job for real professionals in this sector is the opposite: (i) lowering the level of argument AND (ii) providing for proper contact. Where the proper level is the only issue, that is better put as ‘lowering the level of argument BY providing for proper contact’ - whereupon, the quest for adequate contact ends, as does the dispute: the harmful conflict should be (and mostly is) over.

Cafcass: the Horse before the Cart

For Cafcass, the basic components of cause-and-effect have gone walkabout. The effect of inadequate contact is to cause argument. As an ‘eyes-shut’ institution, Cafcass cannot see the cause of these disputes. Its attention switches from the invisible cause to its vocal effect: argumentation. Cafcass has chained itself to the self-defeating strategy of attempting to lower the level of argument without resolving the dispute:

· the research is (p17) that “in the majority of cases, there is no face to face contact at the outset”

. in every low-contact case, the impending risk is the loss of child / loss of a parent

In these urgent cases, Cafcass’ official vision of the child’s welfare is - in due course - to tell the parents that the level of parenting time does not matter: they should sort it out themselves (PrLWG1 Para 25).

Cafcass: A Distorted Mindset

Cafcass’ input has morphed into a value-neutral exercise in purveying condolences - by trying to make sure that everyone appreciates everyone else’s standpoint. From its Operating Framework, at the head of ‘Private Law Cases’ (page 49):

‘We work to change the way family members think [bold added] about each other’

This is not about doing something practical. In fact, Cafcass believes and says that doing nothing about the level of parenting time is actually the solution for inadequate parenting time. From the Operating Framework, page 50: ‘persuading the child’s parents to lower the temperature promotes stronger long-term attachments’.

This is Cafcass’ formal justification for putting a stop to contact disputes without arranging adequate contact.

Cafcass: what Happens in Practice?

How can this nonsense have come about? The real reason is a historic flow-down from Whitehall’s ‘Original Sin’ when Cafcass was created in 2001: see the ensuing tab, ‘Cafcass - Detail’. But first, three gateway points:

1. Cafcass’ empty approach is easily verified

2. Cafcass’ approach is verifiably wrong

3. Actual practice on the ground is varied

Taking these in turn:

1. Cafcass’ void is easily verified

The facts are easily be verified by checking Cafcass’ website for guidance on the best-interests length of contact.

There isn’t any. Work has not started on Cafcass’ urgent priority since 2001 (and Whitehall’s priority since 1996): i.e., what sort of outcomes and what sort of patterns of contact are desirable in what sort of circumstances ? Or, to put it another way, what are ‘the best interests of the child’ in terms of the length of contact?

Cafcass in lalaland

Thought has yet to begin. The consequence is unavoidable: parents breach no guidance, no matter what restrictions are imposed on parenting time. Cafcass’ CEO specifically confirms, “we do not focus on parenting time as our remit is to work out the best arrangements for an individual child” .

The thinking is inchoate: parenting time is the arrangement for each individual child. Cafcass’ position only makes sense if the level of contact is neither a welfare concern nor an integral component of child arrangements.

In this vein, Cafcass’ formal stance at the 2019 Family Justice Review was that parents who are in court - because they cannot work things out for themselves - should be (i) advised they should not be in court and (ii) left to work things out for themselves. According to Cafcass, its job is to ‘guard against’ providing parents with guidance. That is what Cafcass says, and that is why it has no guidance to provide.

2. Cafcass’ approach is verifiably wrong

Cafcass’ construction of contact disputes and post-separation is misconceived - in practical terms. The dispute is sidelined; litigation is fomented; conflict is fuelled; and child-parent abandonment is promoted.

But maybe Cafcass has things right in principle? Perhaps it does not matter if a child loses a fit and loving parent for no reason?

Although this is a simple question, there is nothing so simple it cannot be obfuscated by the ruminations of a large-scale official committee speaking on behalf of central government,

But not in this case. It’s official: Cafcass has everything back to front.

In 2019 a 22-person Ministry of Justice committee (‘the Family Solutions Group’ of FSG) was tasked with providing a summary of the risks to children arising from parental separation. This official committee, which included Cafcass officers, published an extensive report: at the behest of the formally-constituted Private Law Working Group. The PrLWG was the central component of the Family Justice Review, sanctioned by Government.

This FSG’s 2020 report, ‘What about Me?’ was endorsed by the lead family judge managing the Family Justice Review.

‘What about Me?’commends the exact opposite of the line taken by Cafcass. Cafcass has everything wrong. The salient issues, salient risks and salient objectives confronting the Children of Separation are the exact points that Cafcass and its assessments omit.

‘What about Me?’ recorded orthodox thinking on what the FSG rightly believed should happen in these cases - and what it clearly and understandably assumed everyone already knew. The FSG thought is was enunciating truths universally acknowledged.

Cafcass says and does the opposite. This being family law, no-one noticed. The Subgroup’s impulse lies fallow.

3. What Happens in Practice?

Cafcass officers, and Cafcass offices, differ widely. New officers are inducted in Cafcass’ Way, but significant numbers do not accept that for long. How can you omit the level of contact - from a dispute about the level of contact? How can that dispute be resolved if it is not addressed? How to tell a parent it does not matter - if their child is rendered a semi-orphan? Why not do something useful - and arrange parenting time at a proper level?

Many officers find their own way to the realisation that their actual job is to make the best practicable arrangements for the child without being drawn into a dispute where one parent tries to marginalise the other. These officers do so in contravention of Cafcass’ ethos.

Cafcass: handicapped

But there is a limit to what these conscientious individuals can achieve. Their piecemeal endeavours cannot make good substantial institutional deficit:

officers have no material from their employers to tell parents that any level of contact is too high, about right, or way too low.
the written-down guidance that could reach parents months earlier does not exist. Cafcass officers come to these disputes way too late.

How did Cafcass get this way?

The die was cast before Cafcass came into existence. To know Cafcass’ predecessor as it was in the 1990s is to know Cafcass as it is now.

As far as straightforward disputes about the level of contact are concerned, nothing of significance has changed since the 1990s. In fact, things have got worse.