The Bottleneck in the System
CAFCASS has been a disaster from Day One. Its officers write tens of thousands of trivial reports each year – on decent families caught up in divorce. CAFCASS breeds heartache and delay. CAFCASS clogs up the system. It’s the bottleneck in the divorce system wasting hundreds of millions of pounds a year.
Theresa May, former Shadow Secretary of State for the Family (May, 2004)
The voice of the child is rarely heard in court. Children normally may not speak directly to the judge, who is considered to have no competence to speak to children directly, and their views are believed to be better represented through CAFCASS-appointed guardians or through their own solicitors. Despite the obligation of CAFCASS to represent children, they are seldom represented effectively; fewer than 25% of children are interviewed by CAFCASS in Section 8 applications, only 10 to 20% are consulted in mediated cases and when children are interviewed it is rarely for longer than 10 minutes (Trinder L. , 2010). Only 5% of children are kept fully informed of their parents’ separation (Mishcon de Reya, 2009). CAFCASS Young People’s Board observed, ‘[CAFCASS] failed them in listening to their views and in supporting them in finding the right solutions for their future’ (Family Justice Review Panel, 2011a). Intervention by CAFCASS can undermine children’s relationships, ‘[CAFCASS] didn’t explain confidentiality. I couldn’t trust them. They would tell our parents things they shouldn’t have and that we wanted to keep between ourselves. Our parents didn’t like what was said and this has affected the relationship’ (Ibid.).
The court rules actually forbid CAFCASS from approaching the child in their initial representation of the case to the court, the ‘Schedule 2 letter’. If the child’s views are represented to the court at all it is only if a full Section 7 report is ordered and later, in more protracted cases, if a guardian, is appointed. In complicated cases it may become necessary to seek the view of an expert witness. Thus CAFCASS have a near monopoly on how children’s ‘needs, wishes and feelings’ are presented to the court.
This is not a simple problem; some level of interpretation by professionals or expert witnesses is necessary because responsibility for life-changing decisions about children must never fall on their shoulders. In 2005 Anthony Douglas, CAFCASS CEO, announced that children as young as 7 should be encouraged to decide which parent they wanted to live with (Frean, 2005). Parenting groups described the comment as ‘a gross abdication of responsibility [by CAFCASS]… It could leave children feeling very guilty if they felt they had been responsible for driving one parent or other from their lives.’
This ideology promotes the worst part of the current system of family law… This way not only can the system blame the parents for not agreeing arrangements, they can blame the kids for choosing which parents they wanted to live with in the first place if it all goes wrong, which it inevitably will (Fathers 4 Justice, 2005).
We saw in Chapter One how the Summary Procedure (Domestic Proceedings) Act 1937 had established a statutory responsibility for probation officers to provide an investigatory role into allegations made in court. This subsequently led to the formation of the Family Court Welfare Service as a subdivision of the Probation Service, answerable to the Home Office and sharing its responsibilities with the Children’s Division of the Official Solicitor and freelance guardians.
On 18th May 1995, contrary to the advice of his lawyers, a disenfranchised father lodged an official complaint about an FWCS welfare report. For a year the FWCS prevaricated until the complaint reached a secret tribunal which finally sent him a letter on 16th July 1996 stating that it hadn’t read his file, refused to obtain it and rejected his complaint (Cyriax, 1999).
In November the Chief Probation Officer wrote to the father’s MP falsely claiming the file had indeed been read and he was subsequently disciplined for lying. This fact, too, was then denied. It emerged that when checking the quality of welfare reports the FWCS excluded both the substance and the subject of the report. It was revealed also that the FWCS provided its staff with no training in any aspect of their work and provided no guidelines; it possessed no research and conducted none; it didn’t know what its officials recommended, or what the outcome of those recommendations were; it had never progressed beyond the trite adage, ‘all cases are different’. It had no research on what constituted a suitable or reasonable contact arrangement, the minimum level of contact, or at what age a child should start overnight contact. It was, however, prepared to lie to Parliament and to maintain a conspiracy of silence to prevent its deficiencies coming to light.
A scandal brewed; parents across Britain lodged hundreds of complaints; frustrated by the FCWS they then complained to their MPs. Who forwarded the complaints to the Home Office. Which denied responsibility. This fact was forwarded to the Lord Chancellor’s Department which denied responsibility for the Home Office. In the case of Re A the Court of Appeal confirmed a litigant had no right to examine or cross-examine an officer of the FWCS (Re A (A Minor), 1998). The parent body of the FWCS, the Probation Service itself, was now at risk. In 1998 the Home Secretary, Jack Straw, decided to separate the two before further damage could be done, a measure which was kept from the press. After three more years of destructive limbo the Welfare Service was effectively renamed.
CAFCASS was established in 2001 with a brief to safeguard and promote the welfare of children; give advice to the court about any application made to it and make provision for the children to be represented in such proceedings. This means the service’s clients are the judges, not parents or their children. The ‘advice’ given by CAFCASS falls far short of the inquisitorial role some believed necessary. The first S signifying ‘Support’ added a further duty under Section 12(1)(d) of the Children Act 1989 to ‘provide information, advice and other support for the children and their families’. CAFCASS also declares itself to have a role as a ‘children’s champion,’ providing advice and support to other governmental departments with responsibility for the welfare of children; it has never had the staff or resources to fulfil either of these additional roles, and it may be doubted whether it has ever served its primary duties either.
The functions of CAFCASS are split between ‘Public Law’ proceedings in which it provides a guardian to represent a child subject to a care order or adoption proceedings, and ‘Private Law’ proceedings in which it investigates and reports on disputes over residence and contact. In practice CAFCASS now confines itself in private law cases largely to the task of preparing single issue reports and risk assessments ordered by the court during proceedings and advising the court on what it considers to be ‘in the child’s best interests’. The full welfare reports it was once required to produce feature in only a minority of cases.
CAFCASS was set up due primarily to political expediency, and the necessity to sever lines of responsibility and accountability. Many of the FWCS’s entirely untrained staff were transferred directly without additional training. Little changed beyond the name. CAFCASS was rushed into existence to coincide with the launch of a new National Probation Service and cobbled together from no fewer than 117 pre-existing, locally administered agencies; it subsumed the roles of the Guardian ad Litem and Reporting Officer (GALRO) Service, which had mostly been administered by local authorities, and the Children’s Division of the Official Solicitor. The haste with which CAFCASS was established was, according to a House of Commons report, ‘a serious misjudgement’;
The Government should not have allowed the timetable for the establishment of the National Probation Service to dictate the unrealistic programme for the establishment of CAFCASS. The decision to do so makes CAFCASS appear of secondary importance. The impression was gained that the Departmental priorities of the Lord Chancellor’s Department were secondary to those of the Home Office. It is vital that all Government Ministers give priority to work with children in line with their commitments under the UN Convention on the Rights of the Child (House of Commons Committee, 2003).
There were delays in appointing the board, tensions between members of the management team – some of whom were appointed on an interim basis – and financial irregularities. Most of the support to children in public law proceedings had been provided thitherto by self-employed guardians ad litem who were appointed directly by the courts with responsibility to them. Historically there was little or no supervision of their case work, and they were administered by ‘panel administrators’ through Local Authorities; they had a high level of independence and were well respected by the courts. Their involvement, however, was costly.
Part of the remit of CAFCASS was to reduce this cost and subject the guardians to greater management and supervision. Supported by their unions – especially NAGALRO (the National Association of Guardians ad Litem and Reporting Officers) – the guardians naturally resisted. NAGALRO sought a judicial review of the proposed new fixed-fee contracts; CAFCASS responded by seeking to eliminate self-employed contracts entirely. A subsequent judicial review quashed this decision, but it was too late and many guardians left, while those who remained understandably felt harshly treated and undervalued. CAFCASS came to be ‘perceived as the enemy of a quality service to children’ (House of Commons Committee, 2003); major gaps opened up in the service and a formerly highly professional and experienced workforce was largely lost, to be replaced by local authority social workers and unregulated charities. Some believed that the Lord Chancellor’s Department did not want the new organisation to maintain the high but expensive standards achieved by the FCWS. The vital work of establishing the policies and procedures of a new organisation, training, professional development, research and IT were neglected and a backlog of cases built up which has never fully been cleared and which, following the ‘Baby P’ case, increased significantly.
CAFCASS never caught up with itself or operated within budget. The first chief executive, Diane Shepherd, was suspended in November 2001 and was subsequently sacked for mismanagement and other undisclosed reasons – allegedly for paying off a would-be whistle-blower. In August 2002 CAFCASS board member Judy Weleminsky called for a review of the board’s membership, proposing representation from social work unions.
The original failings of the Family Court Welfare Service continued under CAFCASS: the lack of training, the lack of national performance guidelines, the lack of research into the effect of its interventions, the lack of monitoring of outcomes and the lack of guidance on the quantum of contact. For most of its history CAFCASS has had no minimum training requirement, and no defined training budget. Many staff received no more than two days’ training before working on active cases. The 2003 DCA Select Committee report commented that ‘CAFCASS’ failure to establish even a minimum training and professional development strand appears to us to be one of their more serious shortcomings’ (Department of Constitutional Affairs Select Committee, 2003c).
Despite the no-delay principle embodied in the 1989 Act, delay in appointing a guardian increased from 24 hours pre-CAFCASS to at least six weeks post-CAFCASS. Fewer cases were handled, standards of recruitment declined, and the required level of experience was reduced from five years to three; new guardians were unsure of their role in proceedings and judges complained the work done was of an unacceptable standard. There was no training or professional development, existing arrangements ceased and there was no cooperation between old and new guardians. The original system of appraisal and performance management disappeared so there could be no input from staff into the service’s development – and yet one of the reasons for setting up CAFCASS had been to ensure appropriate supervision and accountability of self-employed staff. Freelance guardians were initially excluded from email and the organisation’s intranet. Some £6 million was provided for a case management IT system, but the project was halted and the money disappeared. Even when new hardware was acquired there was no case-management software to run on it. As the Commons report observed,
A further consequence of the failure to establish an appropriate case management system is CAFCASS’s inability to collect information for research and evaluation purposes (House of Commons Committee, 2003).
From its inception CAFCASS failed in its duty to promote the welfare of children through unjustly denying children contact with their non-resident parents; this has undoubtedly been exacerbated by the lack of training and professional development, the lack of monitoring and the failure of the service to allow staff – especially new recruits – to specialise either in public or private law cases. One consequence was the ill-judged decision to direct funds into ineffective, post-litigation interventions such as contact-centres and in-court conciliation rather than more effective options like mediation which are designed to prevent litigation in the first place; as the 2003 Commons report further observed, this contradicted the Service’s stated belief that ‘the best interests of children may be better served, in private law cases, by taking more action to avoid cases coming to… court’; the withdrawal of funding from some mediation services resulted in their complete loss. CAFCASS became the most inept and self-serving component of the family justice system, and was rightly the most disparaged and hated.
Inspection of CAFCASS was initially the responsibility of Her Majesty’s Inspectorate of Court Administration (HMICA); in 2006 they produced a damning report showing CAFCASS had still produced no guidance on the standards expected of practitioners, on what the focus of their work should be, how the work should be planned or how it should be carried out. Practitioners were assessing domestic violence unsatisfactorily and failing to identify whether alleged violence had occurred and what its effect on children had been. Reports were over-long and contained information not relevant to the dispute. Accountability remained unacceptably weak and managers had a poor grasp of what practitioners were up to. Once again, HMICA reported the outcomes of intervention were not known and CAFCASS had done insufficient research regarding the effectiveness of its work or the value of its recommendations. Eventually, in April 2007, national standards were introduced, following the consultation document Every Day Matters; NAGALRO complained it would increase bureaucracy.
According to official reports CAFCASS still does not monitor delay and cannot use this source of feedback to assess or understand the concerns users have, or to show any subsequent action taken to improve service; plans to tackle delay have been unsuccessful while contributory factors have not been analysed. There is no systematic prioritisation of cases and risk assessments are not undertaken, so that children on the waiting list are put at potential risk. Management of cases is unacceptable; case files do not record what work has been done or show that the information acquired in a case has been analysed. They neither record what information has been used to reach a conclusion nor state why other information has not been used. Standards on record keeping are not followed. As a result it is impossible for inspectors to ascertain whether or not children are adequately being safeguarded.
Reports are neither clear nor fair and are based on limited observation of children with their parents. They exclude key information and fail to consult other professionals; they include information which is irrelevant, inappropriate, or subjective and which does not serve children’s interests. The reports draw conclusions without justification and fail to gather evidence when serious allegations have been made, allowing unsubstantiated allegations to influence recommendations. They ignore the wishes of children, even when they are old enough to express them clearly. Family Court Advisors habitually express views beyond their professional expertise; they ignore guidelines on report writing; they do not differentiate between evidence and opinion; reports are poorly written, badly spelt and ungrammatical, exposing a lack of basic education. There is no evidence that a consistent assessment model is being used, and no signs that national practice models are being rolled out, despite claims to the contrary.
Recommendations are made which have not been discussed with the parties and which are not practicable. FCAs jump without intermediate steps from information gathering to a solution, they outline their own preferred remedy and seek the agreement of parents and children, rarely exploring the positives and negatives of their preferred option. Inspectors express concern that, contrary to statute, welfare reports are routine even where there are no welfare concerns; almost all private law reports give insufficient attention to the no-order principle and fail to justify the recommendation for an order: most reports ‘fail to take account of a key principle of the Children Act 1989 that there should be minimum state intervention in family life’.
One source of the guidance CAFCASS gives its practitioners on identifying where children are at risk is the Domestic Violence Toolkit which reflects the routine feminist belief that domestic violence is gender specific; almost every statement in this passage is false:
Older children can begin to replicate the relationship and gender roles that they have witnessed between their parents. In adolescent male children, this can lead to abusive and violent behaviour towards their abused parent and other children as they seek to reinforce dominant male gender roles.
Violence by women is less frequent, less likely to result in the same level of injury, and is most commonly interpreted as an active effort by the woman to resist the oppressive coercion of her partner. The context of self-defence or retaliation is different from the context of male violence, which is usually one of punishment or control. Men are more likely to be the first and last to use violence in a dispute.
The CAFCASS Toolkit was first piloted from September to November 2007; an evaluation (Debbonaire, 2008) was published in August 2008 and acknowledged that some users of the Toolkit had ‘difficulties’ with the approach to gender and the placing of blame for domestic violence exclusively on men. Within a few years it was quietly dropped.
CAFCASS lacks defined guidelines, despite the ready availability of evidence from research, as to what constitutes a meaningful level of contact or parenting time (the ‘quantum of contact’). The family justice system is structured in such a way that the harm caused a child by the loss of contact with a parent is invisible, and can safely be dismissed. The harm directly caused by a parent, however, is visible, and must be acted upon. This is key to understanding the operation of CAFCASS. Any application for increased contact triggers an investigation and risk assessment:
- Where the quality of contact is deemed to be satisfactory there is considered to be no need to increase it;
- Where it is considered poor no increase in contact is recommended;
- Where the quality is indeterminate there is a cessation of contact while the case is deferred.
Because of its origin in the Probation Service many CAFCASS staff still belong to the union NAPO, the National Association of Probation Officers. Recruitment primarily from social services takes practitioners first into dysfunctional families where violence between family members is widespread and only later into ‘normal’ family-related court work. Parents commonly report having been made to feel criminalised or under suspicion by CAFCASS officers. CAFCASS fails to distinguish between children in private law and public law cases, and does not allow staff to specialise; thus they regard all children as potential victims of parental abuse and in need of protection by removal from their parents. Cases involving genuine welfare issues get lost in the plethora of run-of-the-mill contact disputes, leading to perfectly harmless parents routinely denied access to their children as they await reports, while cases in which there are real risks slip through the net. The organisation’s internal problems since its creation continue to be given greater corporate priority than the promotion and protection of the interests of children and families. Its persistent involvement in private contact and residence cases raises serious welfare concerns for the children involved.
By the time the Children Act celebrated its 20th anniversary in 2009 the family courts had issued more than one million contact orders. What is truly terrifying is that they did this blindfolded. No records have ever been kept of the impact on the hundreds of thousands of children whose futures have been determined by family court intervention and the long-term outcomes of these orders have never been analysed. This allegation is the most serious criticism made of the family justice system. No judge knows what effect the order he makes will have on the child concerned and there is no research available to him to guide his decision. He is truly flying blind. A Parliamentary Inquiry commented in 2003,
In the absence of data, the identification of what might be best for any particular child in any particular case is fraught with difficulty (Department for Constitutional Affairs, 2003).
A report by the HMICA in 2006 stated more bluntly,
Given the lack of detailed longitudinal research, CAFCASS shares with the wider family justice system a serious deficit in evidence on which to base its work. The efficacy of most Court Orders in family proceedings remains largely unknown (Her Majesty’s Inspectorate of Court Administration, 2006).
CAFCASS haven’t even monitored whether ordered contact has been taking place. There is certainly no longitudinal research to prove that positive outcomes have resulted. In fact what meagre evidence there is suggests the opposite: there appears to be a direct correlation between the explosion in young offending and the tsunami of fatherlessness. In the absence of data nobody has any idea at all what has ultimately happened to these children, and in the words of Mike Stein, Co-director of the Social Work Research and Development Unit at the University of York, every child has thereby become ‘the subject of an uncontrolled experiment’. In the 2012/13 financial year 146,000 children were the subjects of uncontrolled experiments by CAFCASS (CAFCASS, 2013). Without records on the outcomes for children no research into the effectiveness of intervention can be conducted; researchers outside the courts can gain no objective insight into their effect on children and families, or gather evidence sufficient to determine whether the criticisms made of the system are justified,
We do not even know how often courts make decisions in favour of resident parents, how often they decide to make an order allowing for shared parenting, or how often they decide that non-resident parents should not be allowed to have any contact with their children whatsoever (Freely, 2001).
Analysis of the outcomes of court intervention is scant; academics lamented in 2006 that no specific research had addressed the long-term outcomes of court intervention (Fortin, Ritchie, & Buchanan, 2006). For two thirds of their own sample court intervention had meant getting over the divorce had taken longer, and where the wrong orders had been made problems had worsened. The process was extremely stressful for both children and adults, with most children feeling the courts had not taken their views sufficiently into account and the welfare officer had treated them patronisingly or misrepresented what they had said. The researchers concluded that the benefits of court intervention assumed by the courts and by ministers were not supported by any available evidence. In November 2011 the Ministry of Justice published a summary of all available research into outcomes of family proceedings; it found,
the quality of the available evidence was limited, in that most studies were small scale and based on select sub-groups. There were no large scale, representative studies or studies using control groups (Giovannini, 2011).
The brief 14 page document cited a 2001 study which had interviewed 100 parents and found contact arrangements were less stable than those for residence with two thirds changing within a year (Buchanan, Hunt, Bretherton, & Bream, 2001). In half of cases, however, contact had increased or become more flexible. Another study found that contact decreases over time and breaks down entirely in over 20% of cases within 5 years (Simpson, McCarthy, & Walker, 1995). This has been confirmed by other studies (Bradshaw, Stimson, Skinner, & Williams, 1999) (Peacey & Hunt, 2008). Where parents are highly conflicted the courts do not facilitate contact, and where contact takes place and works effectively it does so only where the courts have had no involvement (Trinder, Beek, & Connolly, 2002). Only two studies addressed children’s satisfaction (Timms, Bailey, & Thoburn, 2007) (Peacey & Hunt, 2009); these found that children were generally satisfied with the process, though there were concerns over the amount and quality of contact. No study considered the objective well-being of children following court intervention, academic performance, continuing abuse, psychological damage, etc. – the data simply aren’t recorded. Most studies are quantitative rather than qualitative, and sample sizes are small. There is certainly no evidence to enable comparison between court-ordered outcomes and arrangements made by other means such as mediation, and the claimed efficacy of the family courts remains entirely unproven.
Re A (A Minor),  EWCA Civ 418 (Court of Appeal March 6, 1998).
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Simpson, B., McCarthy, P., & Walker, J. (1995). Being there: Fathers after divorce. University of Newcastle upon Tyne: Relate Centre for Family Studies.
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