A new Cafcass Domestic Abuse Practice Policy

On 9^th October 2024 Cafcass published a new policy document that outlines what actions ‘practitioners’ (Family Court Advisers and Guardians) and their managers should undertake when working with children and adults who have experienced domestic abuse. The policy is a direct response to the 2020 Harm Panel report and it sets out a clear intention of further protecting child and adult victims of domestic abuse.

Whilst this document does not supplant the professional independence of Family Court Advisers and Guardians, the policy document will provide a useful cross-checking tool for lawyers when analysing section 7 reports or section 16A risk assessment reports to the court.

The policy applies to all Family Court Advisers and managers and states any departure from the starting points set out in this policy must be supported by compelling rationale, discussed with a manager, and recorded contemporaneously on the child’s case record”. Furthermore, “the parent with whom the child resides must be made fully aware in all such cases of the proposed advice to the court, including the reason for any departure from the starting points set out in this policy”.

As ever, readers of this article are recommended to read the whole of the policy document https://www.cafcass.gov.uk/sites/default/files/2024-10/Domestic Abuse Practice Policy.pdf However, to this author, some of the more important/stand out take away points are as follows:

• The application of Practice Direction 12J should be clearly set out in a practitioner’s report to the court
• Practitioners must not use language such as ‘claims or alleges’ when a person reports domestic abuse. Practitioners need to set out exactly what has been said by a child or an adult. It is for the court to determine the facts
• Practitioners must provide a clear, unequivocal and compelling rationale in their reports for discounting domestic abuse as a risk to a child when recommending ‘time with’ or ‘live with’ arrangements when such abuse and harm has been shared with the practitioner by the child or by one or both parents
• Practitioners should include within their analysis, the understanding they have gained during their assessment of the cultural context of the family and any implications of culturally influenced beliefs and attitudes about domestic abuse for the child and the arrangements
• Practitioners must never recommend parental supervision of a ‘spend time’ arrangement when the proposed supervising parent has disclosed domestic abuse by the other parent (even if a parent is offering to do this)
• When assessing those who have been domestically abusive, practitioners must assess the life-long harm caused by domestic abuse and not recommend that a child spends time with a parent who has inflicted harm on a child and their other parent, without clear evidence that the perpetrator:

1. 1. Recognises the harm their behaviour has caused their victims
   2. Has taken responsibility for the harm they have caused their victims
   3. Has taken action to sustain change in their attitude and to stop their harmful behaviour, which has been demonstrated over time, and
   4. These changes have resulted in an assessment that the risk of them perpetrating that behaviour has been removed to the point of enabling a recommendation that family time is now in the child’s best interests

• Where there has been a report of a sexual offence, such as rape, the starting point must be to consider the risk of harm to a child as significant and the need for a fact-finding hearing and suspension of any pre-existing arrangements direct spending time arrangements until the court makes its findings
• If a parent has a conviction for a sexual offence, the starting point is that the risk of harm to a child of contact with that adult is significant and there should be a recommendation for not time with that parent
• Practitioners must not support or recommend any contact (direct or otherwise) or spending time arrangements, where the resident parent and child are currently living in a refuge, having disclosed domestic abuse by the other parent

Whilst it can be said that the policy should not be seen as representing a sea change in the way that individual practitioners should usually approach cases involving allegations of domestic abuse, there does appear to be a subtle shift away from a starting presumption that contact is in the best interests of a child, to a position that no spend time arrangement is safe unless there are compelling reasons to depart from the starting points guidance contained in the policy document. Lawyers will undoubtedly be keen to see how well this policy is adhered to in practice and the effect it may have on existing and new cases.

Please contact clerks@becket-chambers.co.uk for more information about our family barristers.