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Family Assistance Orders: Could more use be made of them?

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford, draws practitioners’ attention to a resource underused in both private and public law children cases.

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford

Section 16 of the Children Act 1989 enables a court to make a family assistance order requiring a Cafcass officer or an officer from a local authority to advise, assist (and where appropriate) befriend any person named in the order. For a long time now I have been of the view that family assistance orders are a valuable and underused tool in both private and public law children's cases. I suspect the reason they are underused is that you cannot apply for them. You can ask in your application for one to be made alongside another order, but the rules do not allow for making an application solely seeking a family assistance order.

Family assistance orders tend to be made in private law proceedings as a result of a recommendation in a section 7 report. In public law proceedings, where in my experience they are even rarer, I have mainly seen them being used as the compromise between a supervision order and no order. In these days of stretched resources Cafcass and local authorities seem only to propose them where they are the obvious solution to a particular short term problem. Since the introduction of the child arrangements programme I have raised the subject in a number of cases both when sitting in the family court and appearing as counsel.  It is fair to say that the greatest resistance has come from local authorities. I have been secretly hoping one would appeal so that we can have the benefit of guidance from the Court of Appeal about the appropriate use of family assistance orders. Given that the introduction of the Children Act will soon have its silver anniversary, it is surprising perhaps that there have been only a handful of cases about family assistance orders, I am sure this proves my point that they are underused. As nobody has appealed in any case in which I have been involved, no doubt out of pragmatism given the relative costs of making a social worker available for 12 months and taking a case to the Court of Appeal, I have decided to write this article. Ironically, I wrote an article called "In Praise of Family Assistance Orders" some 15 years ago when it struck me that if used early enough such orders might be a tool for diverting cases away from the courts. Although since then the terminology has changed, the scope of family assistance orders has been widened by statute and other initiatives have come in for resolving and shortening cases, I do still remain of the belief that there is greater use that we could and should be making of family assistance orders.

The scheme of family assistance orders
The governing provision is section 16 of the Children Act 1989 and there is guidance in Practice Direction 12M (Family Procedure Rules 2010) as well as the Family Assistance Order Guidance produced by Cafcass. As an aside, something else that has changed since I wrote my first article on this subject is the availability of the internet as a research tool and the wealth of readily available resources. Cafcass has produced helpful and readily available guidance not just on family assistance orders, but regarding every aspect of practice, procedure and orders relating to children. As stated above, section 16 provides that where the court has power to make any order in any family proceedings it can order Cafcass or a local authority to make an officer available to advise, assist and befriend the people named in the order for up to 12 months. Those named in the order may be a parent, a special guardian and anyone named in a child arrangements order with whom the child is to live or to have contact, as well as the child. No order can be made unless an adult to be named in the order has consented, so if a parent refuses, that is the end of the matter. Apart from that there is now no requirement for the circumstances to be exceptional nor, in contrast to a supervision order, for any significant harm to be established.

Section 16(7) states that before a family assistance order can be made the local authority must agree unless the child lives or will live in their area. The section is silent about Cafcass which tends to suggest that their agreement is not required. However Practice Direction 12M makes it plain that before any family assistance order is made the court must have obtained the opinion of the appropriate officer of Cafcass or the local authority about whether it would be in the best interests of the child for a family assistance order to be made and, if so, how it could operate and for what period. I have taken the view that once the consultation required by PD12 has taken place the fact that the answer has been a resounding 'no', that in and of itself is not necessarily a basis for not making a family assistance order. The requirement to consult is crucial (see P Children [2015] EWCA Civ 466) but the outcome of that consultation should not be determinative. If the social worker provides a reasoned response as to why a family assistance order is not necessary and sets out how what is envisaged can be provided through child in need services, that is a far cry from "my service manager says we haven't got a fund for that".

Making a family assistance order alongside a contact provision contained in a child arrangements order
The nub of why currently I am such a fan of family assistance orders is the flexibility afforded by two of the subsections of section 16, namely (4A) which specifically provides for "advice and assistance as regards establishing improving and maintaining contact", and (6) which provides for the court to receive a report "on such matters relating to the section 8 order as the court may require". In my view, particularly given the scheme of the child arrangements programme, this is a way to reconcile the tension between the court not holding onto cases and directing repeated reviews and those cases that, with the best will in the world, are not ready to be signed off completely. Therefore, in cases where, following a hearing on evidence, the leap has been made from supervised to unsupervised contact, but it is premature to consider staying contact,  I have made (or submitted there should be made) a final order containing a framework for the following year together with a 12 month family assistance order and asked for a progress report. That report goes to the judge and a copy is provided to the parties. There is no review hearing and if things are going awry the judge cannot bring the matter back of his / her own motion, but can suggest to the author of the report that one of the parties does so. It can be a term of the final order that any future applications are reserved to that particular judge.

Is a family assistance order the appropriate mechanism for achieving professionally supervised contact in private law proceedings?
In private law proceedings today whether it is Cafcass or the local authority that writes the section 7 report will usually depend upon the family's prior involvement with social services. Cafcass family court advisers have usually been willing to supervise one or two contacts in appropriate cases in order to inform their reports, but it has always  been difficult to persuade them to do more. Now we have child contact interventions which are activity directions / conditions under section 11A of the Children Act 1989 under which Cafcass can fund a referral for up to 12 hours of work with a specialist resource which can include sessions of supervised contact. However if it is the local authority that has undertaken the section 7 report, Cafcass will not get involved.
The most significant reported decisions dealing with family assistance orders have been about the vexed question of getting the local authority to supervise contact. On the basis of what was said in Leeds City Council v C [1993] 1 FLR 269, Re C (Family Assistance Order) [1996] 1 FLR 424 and Re E (Family Assistance Order) [1999] 2 FLR 512, there does not appear to be anything wrong in principle with making a family assistance order and ordering the local authority to supervise a certain number of contact sessions, but such an order is unenforceable if the authority refuses to do it because of a lack of resources or otherwise. Whenever I have asked in private law cases the answer has always been "no, no, a thousand times no", which does seem odd to me given that in care cases local authorities supervise contact day in and day out. However I do concede that setting up supervised contact and ensuring detailed notes are provided have different budgetary and resource implications from simply making a person available to advise, assist and befriend and that there are very real 'floodgates' arguments so I have never pressed the point on this particular aspect. Perhaps somebody else will, but there seems to have been a remarkable lack of activity in this regard since 1999.   

Examples of family assistance orders being used to a beneficial effect
I have set out the sorts of situations in which, from my experience in practice and sitting, the making of a family assistance order has proved useful. The Cafcass guidance provides that there should be a case plan which the family should see, a series of goals, regular reviews and a final review to identify what should be reported back to the court. The court itself can set the ambits of the work to be covered and the contents of the report or reports (e.g. one at the early stage of a change in the arrangements for a child and one towards the end of the family assistance order to consider how things have progressed).

a) Private law, Cafcass, direct contact Case started before the child arrangements programme and had gone on for over two years. Background of alleged domestic violence, but no serious findings had been made. Mother and children were very resistant to contact. A family assistance order was made for 12 months during the currency of the proceedings. Under this attempts were made to encourage the girls to see their father, they did, but it was not wholly successful. When the proceedings concluded the family assistance order remained in place and further unsupervised visits were ordered. Children had been joined as parties and originally it was the children's guardian who arranged the contact, but Cafcass agreed to assign a family support worker once a final child arrangements order was made.

b) Private law, Cafcass, indirect contact Father had been living abroad and had not seen children in many years. Considerable amount needed to be done before direct contact could be contemplated. Family assistance order was made so that a family court adviser could assist him in writing letters and assist the children in accepting them, as well as to help the father make a video for the children preparatory to a meeting being set up. This case preceded Re L and M (Children: Private Law) [2014] EWCH 939 which endorses this kind of use of a family assistance order.

c) Private law, Cafcass, shared care arrangement Parties had been at loggerheads over their son for years. Mother applied to vary existing shared residence order to give herself sole residence. Evidence heard over two days, arrangements left in place because child was used to them and strong attachment to father. Family assistance order made to enable family court adviser to set up sessions to improve communication between parents. Report received that things had calmed down.

d) Public law, local authority, contact Parents lived in different parts of the country and had endured a very acrimonious separation. Father had some anger management issues. Mother formed new relationship and one of children was injured. The father and his new partner came forward and the children were placed with them. Mother refused to travel to contact or attend without her partner. Issue at final hearing was whether supervision order should be made, only local authority was pressing for this. Family assistance order made. Issues to be covered in report were resumption of contact with mother and father's continued attendance on parenting courses etc.

e) Public law, local authority, special guardianship order  Mother accepted she could not cope and did not oppose children going to live with paternal grandmother at other end of country. When she was younger grandmother had some difficulties of her own, but had matured. Mother was prone to outbursts and needed preparation for and assistance with getting to contact. Family assistance order made naming mother to original local authority with its agreement because local authority in area where children would live had agreed to provide all the services the children and grandmother required and to supervise mother's contact.

I hope that these examples will encourage people to think about using family assistance orders more creatively to meet the needs of their particular case. The 'be all and end all' is not what happens in court; that should just be a step on the way towards the business of getting on with life. Having a person with the requisite knowledge and skills available and a person in authority keeping a watchful eye over things might in some situations be of value in easing the transition.