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“CAFCASS, are you keeping something from me, darling?"

Byron James, Barrister, of 14 Gray’s Inn Square considers the misunderstanding of CAFCASS's procedures, explained by the President in G v B [2010] EWHC 2630

Byron James, barrister, 14 Gray's Inn Square

Byron James, Barrister, 14 Gray's Inn Square

I am struggling to find an emoticon for this. Common parlance throughout the modern textually aware world is based more or less on three emotions: happy, sad and flirty winking.  Therefore in the emotional scenarios that exist beyond the colon (semi or otherwise), dash and open/close of a bracket we must find another way to say what we feel. How does one, for example, convey frustration? Or misunderstanding? This is important because, let's face it, these are both emotions commonly associated with those insisting on dealing with life through text messages and the like.  Perhaps something could be done with the eyebrows.

Misunderstanding and frustration are easily bred through close working relationships. This is especially so if the power balance is firmly in the other's favour. If someone holds all the cards and teases you, ultimately, you will end up frustrated, misreading into any given scenario either what you want to see, or, Freudianly (more Anna than Sigmund) projecting onto the said someone all the fears you secret away: "darling, all this time have you been keeping something from me?"

CAFCASS is a victim of the world we now inhabit; a world much similar to the Essex hairdresser: one full of cuts, often with garish abandon to what the thing will look like afterwards; yes, smiling, at first, until the magic of the platinum platitudes wear off and outlandish cuts just don't seem so cool anymore. In fact, CAFCASS has been a victim for some time. Despite being whacked around the knees by government and press, to the artificial construct of a world within the family court system they still manage to be crucial, fundamental, and they make recommendations that are so, so difficult to rebuff.

What happens then, when one arrives at court for a typical first appointment in a private law children application by father for parental responsibility and contact, to be told by the CAFCASS officer that you cannot see a risk assessment complied by them on behalf of the family. When pushed, they tell you that the reason you cannot see the document is because 'it did not meet quality assurance standards'. There is information which may or not be relevant, but it has been decided in the offices of CAFCASS that you may not see the same; worse, the decision has been made bureaucratically, away from court, without judicial determination of the same. This happened to the parties in G v B [2010] EWHC 2630 (Fam), a decision of the President.

The parties came to court on 15th July 2010 with, essentially, an agreed position: the father was having regular contact and his concerns regarding the mother's care of the child had been assuaged. Following the Private Law Programme, 'quite properly' according to the President, the district judge put the matter back 14 days to be heard in the 'CAFCASS list' so as to allow CAFCASS to provide a risk assessment. A different district judge heard the matter when it returned, only to be told that the risk assessment had been filed, even though it did not feature on the court file and the duty CAFCASS officer on the day did not have a copy. The matter was adjourned and the author of the purportedly filed report was directed to attend the next hearing.

At the next hearing, a risk assessment was produced by the CAFCASS officer on duty, authored by someone else. The author of the report had only been referred the case earlier that month. Within that risk assessment, there was reference to an earlier risk assessment having been completed in the month previous to the author being involved with the case. The district judge asked the CAFCASS officer on duty to provide the initial risk assessment, completed by a CAFCASS officer whom the district judge held in high regard. After instructions were taken by the CAFCASS officer on duty, the court was informed that the document had not been filed because "it did not meet quality assurance"

The district judge was concerned that the two risk assessments may have reached different conclusions and found that CAFCASS was withholding information from the court. The district judge's conclusion was set out by the President (at paragraph 10):

"[The District Judge] was thus of the view that [the first] risk assessment should be disclosed to the court in an un-redacted form. He gave four powerful reasons for reaching that view. They were: -
(1) that CAFCASS should hold no secrets from the court;
(2) that [the first CAFCASS Officer to report] had completed a risk assessment which should be disclosed under the PLP;
(3) that [the second CAFCASS officer to report] appeared to have placed reliance on [the first CAFCASS officer's] report in compiling her own report; and
(4) that if there was a material difference between [the two] report[s] it would have occurred as a result of the actions of a manager who would not be required to justify the evidence at court.
[the District Judge] then concludes his note by asking the rhetorical question: can any subsequent report issued by CAFCASS be trusted?"

The President found that what had transpired were 'two misapprehensions' (para 11):

"The first is that whereas [the first] risk assessment had been substantially completed on 2 September 2010; it was incomplete and had not been filed. The second, and more significant, is that [the] original and unredacted
report was not being relied upon by CAFCASS because it did not meet "quality assurance" standards, but because it was (a) incomplete; and (b) did not meet the terms of the Disclosure Protocol (the Protocol) reached between CAFCASS and the Association of Chief Police Officers (ACPO)."

Attending at court before the President was the Principal Lawyer with CAFCASS. He provided the President with 'the Protocol' which "in carrying out its safeguarding checks, information was provided by the police to CAFCASS pursuant to the Protocol, and that CAFCASS was under a duty to comply with the Data Protection Act 1998 whenever it processed sensitive personal information" (para 12). Therefore, CAFCASS received information on the police records but 'was unable to reproduce that information if it was not relevant to the child or children with whom CAFCASS was concerned' (Ibid). The two principles of 'the Protocol' were that data had to be processed fairly and lawfully and "that personal data was to be obtained only for one or more specified and lawful purposes and was not to be further processed in any manner incompatible with those purposes" (para 13). 

It was then explained to the President that it 'was not open to disclose [the first] report because it contained information which went beyond what was permitted by the ACPO Protocol" (para 15). It was also acceded that the explanation referable to 'quality assurance' given before the district judge was 'misleading'.  An apology was given which  the President accepted.

Happy ending then: CAFCASS, the judiciary and the Bar all kissed and made up. It does however go to prove that often behind every misinterpreted gesture or regretted action, there is usually an explanation; sadly in life as much as in court there isn't always someone willing to listen and accept the apology.

C'est la vie. This case is important because it provides a peek behind the operating curtain of CAFCASS: the more one knows about the workings of the inner mind of a bedfellow, the less likely one is to leap to misunderstood conclusion.

The President finished by setting out an extract from 'the Protocol' which he hoped 'will prove useful to the profession in helping it and the judges who conduct hearings under the PLP to understand CAFCASS's safeguarding responsibilities, and the duties which they owe under the Protocol':

Disclosure Protocol with CAFCASS and CAFCASS CYMRU in Private Law Cases dated 2008
Guidance note for CAFCASS England

What CAFCASS staff can do

What is not permitted

Comments

Seek and receive information relating to the welfare of children on new private law cases as outlined in the Safeguarding Framework (2.13-2.25)

Information on third parties such as new partners without seeking specific written consent or permission of the court

Guidance on making a judgement as to whether or not to request a police check in private law applications is set out at 2.14 of the CAFCASS Safeguarding Framework

Ask the local authority to do the same in public law cases

Routine requests for police information without checking what information held in the local authority file

Seeking information routinely, will both overload the police and reduce the responsibility of the social worker responsible for the child and family. We are seeking to ensure that these checks are undertaken by the local authority before they initiate proceedings

Discuss this information with the party to whom it refers and the judge concerned; its is also permitted and often necessary to discuss any information relevant to the welfare of the child with the other parent or carers, subject to section 5 above

To give a copy of police documentation to any of the parties or their legal representatives

To discuss sensitive information about one party with another unless it relates to the child, subject to section 5 above

The police are rightly concerned with this sensitive information falling into the wrong hands

Refer in the report to any police information which is relevant to the child's welfare, subject to section 5 above

To attach a copy of the police documentation to the court report or refer in report to any information which is not relevant to the child.

As above – in addition it does not help the conflict between the parties to disclose convictions or incidents unless they are relevant to the child

Go back to the police if more information is needed – key to quote the original reference so time is not wasted on a fresh search from scratch

 

Care must be taken that we do not overuse what is a generally good service from the police

Disclose the information with the local authority Children 's Social Care service if there are urgent child protection issues or if they are preparing a Section 7 report and are willing to abide by the same disclosure rules as CAFCASS/CAFCASS CWMRU

Disclose the information to other agencies when there are no urgent child protection issues

The police are willing to accept that if the local authority is preparing a report then they should benefit from the initial checks undertaken by CAFCASS rather than start again with their enquiries provided they abide by the contents of this procedure