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The New Cafcass Guidance on the Use of Professional Time

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford, considers Cafcass’s response to the record levels of demand for its services.

Gabrielle Jan Posner, barrister, Trinity Chambers Chelmsford

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford

With effect from 1 July 2017 the new Cafcass Guidance on the use of professional time to benefit children applies to all public and private law children's cases. According to the preamble this has been issued with the approval and support of the President of the Family Division in response to a time of record levels of demand for the services of Cafcass and Cafcass Cymru.

The headline points taken from the wording of the guidance are

In terms of private law cases the guidance is very much in accordance with the ethos of the Child Arrangements Programme. I hope that local initiatives such as advice hotlines will be developed and that the personnel and resources for meaningful casework will be made available. In my experience, the service offered by Cafcass differs widely from area to area and whilst one might experience the gold standard for activity directions and conditions in one area, in other places the facilities and the funds just do not exist. As a recorder dealing with private law cases, I have found that certain areas have really helpful service managers whom you can ring if you are a bit stymied as to how to deal with a matter and who will tell you what is on offer locally and how best it can be accessed. However, when I have tried this approach in other areas it has been met with a range of responses from indifference to downright hostility. In recent times I have come across some family court advisers who appear to have the time and energy to roll up their metaphorical sleeves and set up a number of observed contacts followed by meetings to discuss the progress made, whereas there are others who go into a topspin if you so much as mention a family assistance order.

Absent legal aid for most private law cases, one or both parties act for themselves by necessity and do not have the funds to pay for supervised or even supported contact which nowadays always seems to come with a price-tag. Assuming that there are no obvious risks and the issue is essentially about parental antipathy, the more that can be done on the ground early on to assist these families, such as having some professionally supervised sessions of contact before things become even more dead-locked, the better for everyone concerned. I would make it mandatory for the family court adviser to see the child with each of the parents in every case except where this would carry a risk of significant harm.

The courts are encouraged by the guidance to make detailed requests in relation to what the child impact report should cover so that the court has all the information it needs in order satisfactorily to conclude the case. In my view, the best reports are the ones that focus upon the issues so, for example, if a child is said to be struggling in school, it is much more helpful if the family court adviser has actually spoken to the class teacher rather than just writing off to the school for a report. Similarly, if a child has been having play therapy it is far better for the family court adviser to speak to the play therapist rather than leave it to the parents to get a report which is likely to say so little as to be meaningless or at the other extreme to divulge so much that it threatens the child's confidential relationship with the therapist.

In respect of public law proceedings, the days of the children's guardian sitting through the whole of a fact-finding have largely gone already, but in my experience as counsel, too many children's guardians are being excused from attending the early hearings which is when you really need them to assist with whether a child should be removed from home and in determining the future shape of the case. I also think there are too many reports and position statements that just regurgitate what you already know from the social worker's statement and the reports of the court-appointed experts. In my view, the best reports, particularly in adoption cases, are the ones that go through the welfare checklists in sections 1(3) of the Children Act 1989 and 1(4) of the Adoption and Children Act 2002 paragraph by paragraph filling in the blanks. They save a lot of cross-examination and are of great assistance to the judge in formulating the judgment.

I do think that the aims of the guidance are entirely laudable, but unless there is adequate funding, the end result will be that little will change except that reports will get shorter. I am sad to say that I have lost count of the number of times I have heard the expression "proportionate working" being used as a reason for something that is important not having been covered in public as well as in private law cases. When that happens, the reliance the court is able to place on the children's guardian / family court adviser diminishes and the person who is uniquely placed to add value simply fails in their role.

Turning back to private law proceedings, in relation to the spirit of the new guidance, if not its actual terminology, here is my plea from the heart. In every case involving litigants in person where there has to be a fact-finding hearing because there are serious allegations of physical / sexual abuse, please join the child as a party, appoint a children's guardian who in turn can appoint a panel solicitor. Given that many lawyers appear not to know how to do a proper protocol request to the police for the disclosure of information and / or how to draft a decent Scott Schedule which understands the difference between a primary fact and a conclusion and is cross-referenced to the bundle, it is unrealistic to expect a litigant in person to be able to do these things.

As a recorder, I have found myself compiling bundles from sundry documents, drawing up the schedule and then having to put the cross-examination of the alleged perpetrator to the alleged victim. The problem with this is that whether the truth actually does emerge seems to me to be somewhat hit or miss and one party is going to end up thinking I have sided with the other party however much I try to explain what I am doing and why. At least having a solicitor for the child or children with a children's guardian advising in the background (whose attendance at the hearing can be excused) helps with some of the practicalities including getting the necessary documentation in the first place and settling the schedule, which better preserves the neutrality of the judge.