CAFCASS – an end of term report (March 2003)

By Robert Whiston FRSA, March 2003

This is the Executive Summary of a submission [*] made in March 2003 to a UK Parliamentary Sub-Committee Inquiry [**] into CAFCASS [***].

CAFCASS was a direct replacement for the Court Welfare Officer (CWO) regime that had for many years been operated by the Probation Service, a section run by the Home Office.

However, by the late 1990s the Court Welfare Officer model was a discredited system and had to be finally toppled by many groups, principally fathers and grandparents, working in unison.

Probation Service staff who worked as Court Welfare Officer were never appropriately trained for ‘normal’ families. The primary focus and remit of Probation Service staff was work with criminal families at the very margins of “decent society”; disparate, dysfunctional and ‘troubled’.

The CWO career structure took them first into families where criminality was rife; where violence between family members and/or with their neighbours was not unusual, and only from there could CWO’s later migrate into ‘normal’ family divorce and related court work.

Court Welfare Officers have never, to our knowledge, been trained specifically for domestic, i.e. ‘normal’ families going through a divorce and the related court work; nor have they been assigned it as an exclusive alternative at college, or an option once training was completed.

Despite assertions to the contrary the formation of CAFCASS has so far proved to be little more than a re-badging exercise.

  • It still does not have staff that are trained primarily in child matters.
  • It still does not have staff that are trained primarily or exclusively in ‘normal’ family matters.
  • It still does not have a planned programme of education, re-education or any targets for upgrading the competency of any of its current staff.
  • On the visible ‘court room side’ there is confusion and poor standards, e.g. CAFCASS / CWO reports.
  • On the invisible, or ‘judicial side’, there is rampant ineptitude, mismanagement of committees and a disintegration of services that were designed to provide back-up and advise judges and courts.

The primary directive agreed by all members of the Court Users Group, formed by the Lord Chancellor’s Department prior to the creation of CAFCASS was that shared parenting would be the adopted norm.

The secondary directive agreed by all members of the Court Users Group was that standards be standardised; that benchmarking be introduced; that practice levels should be the best possible; and that the former Probation Panels should be able to compare their results and outcomes with other panels by using the promised integrated computerised system. [1]

None of this has happened. In fact, everything has been shelved.

The secrecy surrounding divorce courts means no one can comment on how much more functional or more dysfunctional are the committees set up to supposedly support the regime, or if there is more ineptitude or more committee mismanagement expressed by a now collapsing edifice.

The foregoing verdicts are not ‘minority’ views or those of a ‘vested interest’ but the assessments found in a government Consultation Paper published by the Lord Chancellor’s Department and endorsed by various cognoscenti including Mr. Justice Thorpe in his introductory preamble to the 2002 paper. [2]

In it Thorpe candidly catalogues the failings of the family court system on the judicial side of the bench.

Judges and the judiciary always declare they do not decide a child’s fate but have always depended on the recommendations received from CWOs (now renamed CAFCASS officers). They maintain that their judgments solely reflect those recommendations. On the other hand, CAFCASS (formerly CWO) have always maintained they only give ‘an opinion’ and it is the judge who ‘decides’, i.e. makes the custody award.

If nothing else we are, or should be, concerned about children and attempts to shuffle-off of responsibility is a prime cause of both poor decision making and Court User frustration with the system.

It is not good enough for CAFCASS to fund a survey of court users to exonerate itself. It is relatively immaterial how pleasant or receptive or sensitive we believe CAFCASS staff were when dealing with clients and their children. It is inconsequential how ‘friendly’ we viewed the court procedures or how we think we were treated by courts if, at its core, the system is rotten.

These are merely ‘processes’ and measuring those gives us only a subjective Customer Satisfaction Index. Our prime function should be objective and the addressing of ‘outcomes’ as they impact children.

The fact that the Department of Health torpedoed the Children Act 1989 at its launch and the fact that the situation has actually worsened for children of divorcing parents since the 1989 Act is extremely regrettable. The situation will only change when the directive sent out to courts by the Department of Health (John Bowis MP) is widely publicised, acknowledged and rescinded. [3]

Journalist Margarette Driscoll, (Sunday Times, Feb 17th 2002), and others have highlighted the need for, and attraction of, shared parenting – a concept still alien to CAFCASS staff, the Lord Chancellor’s Department and judges alike.

Judicial opinion is slowly shifting towards a more receptive approach of Shared Parenting as the unachievability of the enunciated ‘Residence & Contact’ model grows ever more obvious and can no longer be ignored.

Judges concede that the present residence and contact system is not able to care for the most vulnerable when marriages break-up and move the focus to the present failings of CAFCASS. This is disingenuous behaviour by judges (ref. John Bowis MP), for although CAFCASS has its undeniable faults all the blame does not rest with them.

Children whose parents are going through a difficult separation or divorce have a tough time. Both the parents and chidlren are vulnerable and one needs professional status guidance and the other the support element in the acronym ‘CAFCASS’ – an element singularly absent.

Family Assistance Orders (FAO) has long been a part of the custody award process in difficult cases. Though used sparely the emotional support they have provided has been shown to be of benefit to those families in danger of totally breaking apart. Is it surprising that many custody arrangements quickly fall apart when it is used so little?

CAFCASS have been slow in seizing this as an option to smooth the transition for families. CAFCASS officers generally also seem unaware of the other options including joint or shared parenting that exists within the Children Act. As a result they never recommend it to the court.

Is this a deliberate sexist policy or a genuine ignorance reflecting inadequate training?

When still part of the Home Office the approx 12 panels or regions that made up the Probation Service, never once promoted it. Significantly, it does not appear in NAPO’s manuals and instruction to its union members, rather it promotes awards to same-sex (lesbian) couples.

Under the newly formed CAFCASS hierarchy again not one region has advocated joint or shared parenting and it is unrecognised by the central bureaucracy.

This is curious given that though 5 years before the Children Act (circa 1985) joint custody, i.e. shared parenting, was not uncommon. In fact, CWOs and judges at the time remarked to the Law Commission enquiry on just how well it worked for those that were given such a custody award.[4]

Today, CAFCASS has no research facility or analysis capability, or plans to develop either. Officers at the central office see no urgency to be kept up to date with literature in this field. This underlines the generally perceived apathetic mindset verging on the incompetent to be found, not with the CAFCASS board, but executive officers.

Launched only 2 years ago, CAFCASS brought together 1). guardian ad litem, 2). the court welfare service and 3). the children’s branch of the Official Solicitor’s department under one roof.

All was funded by and the responsibility of the Lord Chancellor’s Department, but it is already viewed by some as on the brink of collapse.

That much was promised but little has been delivered might prove its epitaph.

CAFCASS must be given the resources (funds) to offer an effective system to protect children.

In concert with CAFCASS, the priority must be to inform and educate parents about the consequences of their breakdown in relationship; the future prospects for their children; and to help them to make appropriate parenting arrangements. But this assumes that executive officers are cognisant of more than one ideology.

CAFCASS, though not above criticism, is vital in this process. Men’s and fathers’ groups are disappointed that positive suggestions, advice and recommendations have so comprehensively been sidelined. Refusing to recognise the importance of ‘outcomes’ is particularly disappointing.

Mediating between couples is a role full of potential and open for CAFCASS to profitably grasp.

Fundamentally, the great flaw is the lack of a commonly agreed vision or standard view regarding how decisions about chidlren should ideally be made.

Training appears ‘out of synch’ with modern societal demands. There is, for instance, no national Training Manual or Complaints Procedure – both are items for which we produced skeleton manuals.

There is also a lack of urgency with much bureaucratic time and energy in the first 12 months directed to internal fights with trade unions and workers rights (pay and pensions etc).

So desperate did the situation become during the first 24 months of the infant CAFCASS that Men’s and Fathers’ groups who had been working on non-sexist paradigms and exemplary standards for years presented CAFCASS with skeleton manuals and operating procedures and other working documents all ready for distribution and all capable of fine tuning in the field.

The Lord Chancellor’s Department has respond to the recommendations made in ‘Making Contact Work’ a Consultation Paper, by creating PSA-8 (Public Service Agreement, a regime between the Treasury and a Whitehall department).

As a matter of priority this seeks to enlarge the quantum of time fathers spend, or are allowed to have, with their children after divorce. As presently conceived the quantum a father may spend with his child is not defined and any amount can and is deemed sufficient. This regulation amounts to the state ‘licensing’ of fatherhood and father access.

While fathers’ groups are pushing hard for elementary justice, human rights and pressing courts to enforce their own contact orders, women’s groups are simultaneously resisting what they see as an encroachment of their monopoly which, to them, is an assault on their citadel.

An example of the resistance to any movement in time allocation favouring fathers can be found in the official minutes of PSA-8 to this author’s committee proposals.

Whitehall committees where family policy issues are discussed are always comprised of 80% – 100% of women’s groups – men rarely get invited (see PSA-8).

In this struggle for fathers to voice their human rights, the red herring of ‘policies not properly take domestic violence into account’ has been much in evidence.

Women’s groups in general are ‘in denial’ on two fronts; firstly, that children need their father as much as their mothers and we find it adolescent to feign agreement but then block contact; secondly, that if abuse is to dominate discussions then the amount of abuse directed at, and meted out, to children by mothers is far greater than that by fathers. The NSPCC abuse figures prove this.

These then appear to be two uncomfortable facts that currently women need to absorb and sooner or later recognise.

CAFCASS officers undoubtedly meet some very bitter and distressed parents – both mothers and fathers. Indeed, all men’s and fathers’ groups meet a goodly number of distressed parents.

These distressed parents expect CAFCASS officers to be experienced and ‘professional’; to give a professional assessment; that their personal choices, preferences or ideology should not influence or cloud their judgement as to what is in the best interests of both parents and child.

However in very many cases that men’s and fathers’ groups become involved with, either directly or indirectly this ideal state is not apparent. This then casts doubts on the even-handedness of the other cases we do not see.

In too many cases the resident parent’s view (the mother) is preferred and the view of a). the child or b). the non-resident parent is totally obliterated as insignificant.

Invariantly we find the custody report will state that ‘both parents are adequate and loving’ but that given ‘the children are settled with the mother at a new home’ (when she took them out of the ‘matrimonial home’), they should be left with her.

The argument then continues that given the above, the matrimonial home should, however, now be handed over to her so she and the chidlren may ‘grow up in familiar surrounding’ in preference to their present ‘cramped conditions’.

Any bias is objectionable but when the bias is gross then the bitterness becomes not only on-going but negative and debilitating to the whole relationship – parents and children. It is at this point, we believe, that ‘parental alienation syndrome’ (PAS) takes root.

The knowledge that children can be used as leverage in residence and contact scenarios only encourages them to be used as such with all the attendant child damage that induces.

Seasoned CAFCASS managers argue that this probably does more damage to the child than anything else, including the divorce.

In view of this, therefore, should CAFCASS’s role be one more angled towards brokering ‘shared parenting’ where there is no winner-takes-all scenario, and there is no ‘contact’?

The consumer research that has been undertaken by CAFCASS is misleading and is not revealing enough. Reponses show that a parent’s view of a CAFCASS practitioner, i.e. a Court Reporter, is dependent on whether a suitable court order was obtained.

If the order was seen as favourable to a parent’s application, then that parent thinks CAFCASS are professional, objective and helpful.

If, however, the order is not in a parent’s favour, CAFCASS is perceived as unprofessional, biased and unhelpful.

At least 50% of customers, i.e. mothers, are therefore always happy with CAFCASS and 50% (fathers) are therefore always unhappy with CAFCASS. [5]

This dichotomy will persist until the bread and water diet of ‘winner takes all’ is replaced.

Despite evidence to the contrary the political will does occasionally exists to make changes. For instance, Jo Dillon, the Political Correspondent of The Independent (March 2002), was able to write that “Domestic violence will for the first time be taken into account when court orders are made granting parents the right to see their children”, [6] and Lord Irvine’s small changes have been accepted or adopted albeit 3 years later. If legal change can happen for women and domestic violence why can’t it happen for men and custody?

In an age of supposed equality it would appear that the rules of ‘Animal Farm’ still operate and one sex is more equal than the other.

— END —

[*] UK House of Commons – Select Committee on Lord Chancellor’s Department – Written Evidence – Written evidence submitted by Robert Whitson, Chairman, ManKind (CAF 53) – March 2003

[**] UK House of Commons – Select Committee on Lord Chancellor’s Department – Third Report – Children and Family Court Advisory and Support Service (CAFCASS) – July 2003:
A. Report, together with formal minutes – 23 July 2003 – HC 614-I – ISBN 0 21 501216 X
HTML version (browsable)
PDF version
B. Oral and Written Evidence – 23 July 2003 – HC 614-II – ISBN 0 21 501217 8
C. Government’s Response to the Committee’s Report on the Children and Family Court Advisory and Support Service (CAFCASS) – October 2003.

 

Footnotes:


[1] Minutes of CAFCASS User Group, 2000 -2001

[2] “Promoting Inter-Agency Working in the Family Justice System”, Consultation Paper, (Code CO 04/02). 2002

[3] His letter sent to all judges instructed them to view ‘shared parenting’ as an exception rather than the rule. This only makes sense if he confused public law where parents are deemed ‘unfit’ with private law i.e. divorce.

[4] Law Commission, Working Papers No 96. (1985-86)

[5] This is a view borne out in “Families in Conflict, Perspectives of Children and Parents on the Family Court Welfare Service”, Buchanan, Hunt, Bretherton & Bream (2001).

[6]“Violent parents will lose access” – Independent, The (London), Mar 17, 2002 by Jo Dillon Political Correspondent – (This article is no longer available at its original primary link-url at the Independant Newspaper website at: http://news.independent.co.uk/uk/this_britain/story.jsp?story=275416 – It can however still be read at this secundary referring linksource).

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