The Chief Executives of Cafcass and Cafcass Cymru have issued new guidance on the use of its officers in private and public law children proceedings. The document, functionally entitled ‘Guidance on the use of professional time to benefit children’, has been issued with the approval and support of the President of the Family Division and became operational on 1st July 2017.
The guidance sets out a national framework for more targeted and streamlined use of Cafcass practitioners in their various roles within the family courts. The guidance emphasises flexibility and asks the judiciary to support that flexibility by operating within the new framework. For its part, Cafcass aims to ensure that its services are “not diluted as a result of these changes”.
The timing and direction of the new guidance is perhaps unsurprising given the continued increase in the demand for Cafcass services. In 2016-17 demand for private law increased by 9.1% and demand for public law increased by 13.8% when compared with the previous financial year.
So how will the new framework affect private law children proceedings?
- Defined interventions by Cafcass after the First Hearing (FHDRA)
Although Cafcass will continue to produce a safeguarding letter and attend at the FHDRA the area subject to most change is the work undertaken by Cafcass after the First Hearing; this work will become “streamlined and re-focussed”.
The threshold for any Cafcass involvement beyond the FHDRA will be a concern about “significant child impact” and “not the fact that the parental dispute is continuing in court”. Although the guidance has nothing more to say about the threshold, it seems likely that in many cases Cafcass involvement will stop at the FHDRA stage of the proceedings. In cases where subsequent intervention is required, Cafcass will no longer produce the traditional s.7 report. Instead there will either be:
(a) 3 or 4 sessions of casework intervention in the most complex cases; or
(b) New “more intensive child focussed” Child Impact Analysis reports in less complex cases.
Traditional s.7 reports will continue to be produced (for the time being) while the new reports are trialled and evaluated (for up to 6 months) in Essex, York, North Yorkshire and North Wales. If the trials are successful we may expect to see traditional s.7 reports being phased out and the newer reports being introduced throughout England and Wales in 2018.
When ordering a Child Impact Analysis report, the court will need to set out the specific issues to be addressed and record these on the face of the order. The new report will include an assessment and recommendation by Cafcass and may also include some brief casework. A template for the new report is set out at the end of the guidance and contains just 5 headings with explanatory bullet points. To assist the reader these are replicated below:
| Cafcass Child Impact Analysis
1. Summary of issues for the child
This section should include:
2. Enquiries undertaken
3. Child Impact Analysis
4. Structured Professional Assessment
5. Recommendations for the child
The template, which includes words like “summary” “bullet point list” and “succinct account”, is likely to produce a shorter and less detailed report than the traditional s.7 report.
2. Second/addendum reports in private law cases
The guidance is clear that second/addendum reports should only be requested in exceptional circumstances and, if ordered, clear reasons must be noted on the face of the order.
3. Attending court
The guidance states that attendance at court by Cafcass practitioners should be kept to the “necessary minimum” so as to allow them as much time as possible working with children and families.
It is suggested that Cafcass practitioners should attend court either:
- to give evidence;
- when their evidence is critical to decision-making; or
- to listen to evidence that it is essential for them to hear if they are to make effective recommendations to courts.
The guidance states that practitioners should not have to sit through lengthy hearings “of any description” unless it is necessary to do so.
4. Advice to court
The guidance is critical of courts asking Cafcass to carry out work in cases where there are no safeguarding or serious welfare concerns simply because they are “apprehensive about taking decisions without advice, especially when neither party is legally represented”.
The proposal is that, instead of ordering a report, local arrangements should be set up between Cafcass, the judiciary and HMCTS to ensure that advice is available to courts when it is most needed. The guidance sees this advisory role as being “the social work equivalent of legal advisors”. However, this is only likely to work in areas where there are sufficient resources and staff available (and willing) to develop such local arrangements.
In conclusion, despite assurances that the services of Cafcass will not be diluted as a result of the changes and despite the emphasis in the guidance on flexibility, the new framework appears to offer a fairly prescriptive interpretation of services post-FHDRA. Indeed, the guidance states “[w]e see no reason to ask Cafcass or Caffcass Cymru to deliver work outside of this framework”. If the judiciary embraces and operates within the new framework, it will almost certainly ease pressure on Cafcass at a time when they are experiencing a record demand for their services. Whether or not the changes will lead to an adequately informed court or bring any benefit to the children and families using the family courts remains to be seen.