New CAFCASS Guidance

The Chief Execs of CAFCASS and CAFCASS CYMRU have issued the snappily titled : GUIDANCE FROM THE CHIEF EXECUTIVES OF CAFCASS AND CAFCASS CYMRU ABOUT CHANGES IN USE OF CAFCASS PROFESSIONAL TIME TO BRING MOST BENEFIT TO CHILDREN WITHIN THE RESOURCES AVAILABLE (AKA We’re doing our best, alright?*)

*I added that bit.

It was published here on 2 Jun via Family Law (Jordans). Which is odd because it appears to be a consultation, which closed on 1 Jun. Perhaps it has been internally circulated before its public outing on the Jordans website, who knows. I guess external stakeholders views weren’t wanted.

So, what does it say? Well, I confess I don’t understand a word of it. But it makes me a little twitchy. I’ve had to put some soothing flowers at the top of the post to calm me down…

I do get that it is a document prompted by the combination of limited resources and an ever-climbing workload (clue in title). We’ve seen such documents before from CAFCASS. Remember the time when CAFCASS ran out of Guardians, the interim guidance to deal with the temporary crisis in 2011? The menu of options for s7 “lite”? Remember “proportionate working” in the operating framework in 2014? See here for posts on Pink Tape about CAFCASS over the years if that is all a distant hazy memory to you, and this post in particular which links to the interim guidance and the menus.

It is an attempt to answer the question of how CAFCASS can do more with less. I sympathise with them. But this document is really worrying, not least for its complete lack of clarity (is it a draft, a consultation?), and ambiguity of scope (does it apply to pilot areas mentioned or everywhere? when does it come into effect?). And does it supercede the operating framework?

For a document that starts by saying the emphasis on flexibility it is strikingly restrictive in its interpretation of how CAFCASS Resource should be used.

It seems to say that CAFCASS officers should pretty much never be at court unless its a FHDRA or they are required for cross examination. Here is the actual wording :

…we think that social workers should attend court either to give evidence, when their evidence is critical to decision-making, or to hear evidence that is essential for them to hear if they are to be able to carry out their own work and to make effective recommendations to courts.

We do not expect social workers to be sitting through lengthy hearings of any description, unless there are exceptional reasons for so doing. We ask you to pay special attention to this point.

In public law cases, the child’s legal solicitor or barrister will still be able to attend every hearing, having taken instructions from the guardian who will remain accessible by phone to the solicitor or barrister in the usual way.

I’m not sure that this is supportive of guardians being present at all hearings in care cases, which in my view they should be – unless specifically excused. Although pa 6.5 PD16A requires :

The children’s guardian or the solicitor appointed under section 41(3) of the 1989 Act or in accordance with paragraph 6.2(a) must attend all directions hearings unless the court directs otherwise.

it is usual for a guardian to specifically seek permission not to attend even if their solicitor is present. For good reason. It is already a known phenomenon for conscientious guardians to furtively suggest that the court might wish to order them to attend so that they may be present at a hearing or to hear the evidence of the parents where they consider it necessary – in order that they can do so without being reprimanded. This can only get worse.

In private law we are told of the invention of a new form of s7 lite. Although I think 7 Zero would have been a better rebrand, they’ve gone with the rather less obvious “Child Impact Analysis”. This comes with its own template containing 5 generic headings and no reference to the welfare checklist. The irony of course is that if the analysis is not set out with reference to the law, a party is far more likely to require the officer to come to court to give evidence in order to explain their analysis. So possibly not such a genius way to free up the time of a CAFCASS Officer. Unless the success of this wheeze is predicated on the assumption a LiP won’t know to ask for the officer to attend for cross examination.

The guidance says :

The work of Cafcass and Cafcass Cymru after the first hearing [in private law] will be streamlined and re-focussed, so this is the area of work we propose should be subject to most change.

Cafcass and Cafcass Cymru plan to deliver more defined interventions in cases going beyond the first hearing than the traditional section 7 report and they intend to pilot new child impact reports for 3-6 months in Essex, York and North Yorkshire and South West Wales.

The threshold for asking Cafcass/Cafcass Cymru to carry out work beyond the first hearing should be a concern about significant child impact, not the fact that the parental dispute is continuing in court.

Whether this means there will be any change outside of the pilot areas is anyone’s guess. And quite what the last sentence actually MEANS is beyond me. What is a “significant child impact” and exactly which cases don’t involve one?

There is talk of “brief interventions” and “brief child-focussed casework“. I think this means CAFCASS will go back to doing some actual hands on social working – not a lot, but a little (as Paul Daniels would have said). The stuff that used to be done by the FSWs that were made redundant some years ago. The stuff that CAFCASS have been telling us isn’t their job for some years now (oh no, we just write reports). I welcome this, if it means what I think it means (working with instead of reporting on families – facilitating reintroductions, life story etc).

There is also mention of “local arrangements” and “hotline arrangements” (which apparently exist in Wales) so that CAFCASS can “[act] in a social work advisor role to court, as the social work equivalent of legal advisors.” Nope, me neither. Does this mean they’ll rock up and make a recommendation on the hoof? By phone? With or without the parties present? With or without them being able to ask questions (on the hoof) (without a lawyer)? *twitch…twitch*

In public law we’re likely it seems to get one rather than two analyses from a guardian. In truth this is beginning to be the norm anyway, but there is a significant benefit in many cases in an early analysis for which a position statement is just not a substitute. Such analyses can materially affect the whole direction of travel of a care case (including whether or not there is an interim removal). Coupled with the fact that a Guardian is now unlikely I think to even be at court at a CMH, this is worrying indeed. So much happens at those early hearings, so much information is elicited whilst at court – a Guardian should be AT court liaising with social workers and asking questions and rolling up their sleeves, not receiving the potted highlights from their solicitor some hours later.

Anyway, there you go. That’s my initial impact analysis – there will be a significant impact, I just don’t know quite what it will be. Things are changing. Or possibly just coming full circle…. *helpful face*

I sympathise with CAFCASS, like any other public service struggling to manage with inadequate funding but I do wish they’d drop the jargon and speak English.

Watch this space.

And send me explanations if it makes sense to you…

Oh and by the way, the General Election has messed up Family Court reform…

Have been meaning to write a short post observing that the Prison & Courts Bill, which contained draft proposals to deal with the vexed issue of direct cross examination of alleged victims of d.v. by their alleged perpetrators and enabling provisions to allow the online court reform programme to move forward, has been ditched in light of the election.

That is to say, it is no longer going to be considered in this Parliament, and we will have to wait and see whether the new Government (either a “stronger and stablerer” May Government or some other sort of Government) has the time or inclination to put this back on the table. Once can foresee that other priorities such as the “Great Repeal Bill” might take priority (much like disguised compliance which means the exact opposite of what it says, this would be a Bill that would repeal one thing and enact a million others into our law, but hey), but it’s difficult to tell what sort of space in the timetable will be left for other ongoing work. Other factors which increase the uncertainty are the increasingly frequent news articles speculating that our Lord Chancellor Liz Truss, who is of course responsible for this legislation, is not going to last much longer in that post.

So we will have to wait and see. But at best this means some delay in getting these reforms through. At worst it means they disappear into the long grass of Brexit.

For those who enjoy an exercise in futility you can read what I said about the Prison & Courts Bill when it was still a thing here, and what David Burrows said about it in a guest post here.

Guest post : Prisons and courts bill: cross-examination of complainant witnesses

This is a guest post written by David Burrows.

 

Quality of evidence of domestic violence complainants

 

Thanks to pressure from a variety of sources including Women’s Aid, The Guardian and Sir James Munby P the Lord Chancellor, Liz Truss, has incorporated into her recently published Prisons and Courts Bill – amongst a varied legal mixture of provisions, including those aimed at making prison nastier for those sent there and cheaper car insurance (with the capping of whip-lash injury claims) comes measures in family courts to bolster protection of complainants to domestic violence. The Ministry of Justice press release says that ‘quizzing’ (their word for cross-examination) of complainants by their alleged attackers is to stop:

 

The government is giving courts the power to put an end to domestic violence victims being quizzed by their attackers in the family courts, calling time on what the Justice Secretary has described as a ‘humiliating and appalling’ practice. This follows an urgent review she commissioned last month.

 

The bill has had its first reading, but no date has yet been fixed for further progress. Clause 47 inserts a number of amendments into an existing family law statute, Matrimonial and Family Proceedings Act 1984, as proposed sections 31Q-31X. The aim is to deal with cross-examination of a domestic violence complainant (A) by an unrepresented defendant (B). In law, if A makes allegations against him (mostly B is male, but not always), B has the right to cross-examine A about what she has told the court about him. In these circumstances there are many in A’s position who find that they are re-living the abusive situation; and this is precisely what the court hearing is designed to get her away from.

 

Youth Justice and Criminal Evidence Act 1999

 

Clause 47 has many similarities with the existing provisions of Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’); though any reference to YJCEA 1999 involves taking account of qualifications which apply to criminal proceedings but not to family cases:

 

  • A is a witness, and always has a prosecution legal representative dealing with the case; whereas in family proceedings she is both party – the person bringing the application – and a main (perhaps the only) witness;
  • The standard of proof against B is beyond reasonable doubt, whereas in family proceedings it is to the civil – more probable than not – standard; and
  • In a criminal case there is a variety of ‘special measures’ available to the court (YJCEA 1999 Part 2; Evidence in family proceedings Ch 8 Pt 2), which are not available in the same way to family courts and are not referred to in this bill.

 

Reference to ‘special measures’ recalls that the Ministry of Justice thinking on family law reform in this area is not joined up. ‘Special measures’ have been on the family law reform agenda for nearly three years: since Sir James Munby P set up a Vulnerable Witnesses and Children Working Group (‘VWCWG’) in late Spring 2014. That came up with draft rules which included ‘special measures’ as in criminal proceedings; but I assume they are snagged on a resources barbed wire fence.

 

So now, in separate statutory provisions in cl 47 of the new bill, cross examination etc – which will require its own procedure rules – is being dealt with in isolation from the Working Group recommendations (some of which will need redrafting if this bill is enacted). Separately, again, Ministry of Justice has published a modest draft practice direction which has been drafted without regard to what is in the bill.

 

From the point of view of the parties to proceedings the important provisions of this bill are:

 

  • The provisions for exclusion of cross-examination of A by B acting in person (MFPA 1984 ss 31R, 31S and 31T)
  • Alternatives to cross-examination by B in person which the court can order (s 31V(5): akin to YJCEA 1999 s 38(4): appointment of an advocate to cross-examine for the court)
  • Funding for s 31V cross-examination at s 31V(6).

 

The Prison and Courts Bill

 

The proposed reforms start with two provisions – s 31R which prevents a person in B’s position, who has been prosecuted for a serious offence against A – the specific offences are yet to be defined – may not cross-examine a victim of that offence (s 31R(1)), balanced against a prohibition on a victim cross-examining B (s 31R(2)). Similar prohibitions apply in relation to an injunction order which has been made by the court and on notice to B (s 31S(1) and (2)).

 

Thus ss 31R and 31S apply where the court is able to take action because another court has previously made findings against B – in criminal or injunction proceedings – so another judge need not re-invent that wheel. Another judge or a jury have made findings against B by which the second court is bound.

 

Section 31T is the central section of the reform proposals. It grapples with the question of what happens in relation to a witness whose evidence may be affected by their ‘significant distress’ at being cross-examined by B. A Ministry of Justice analysis of the subject said at para 6.1:

 

Judicial interviewees… felt that the ‘magic wand’ would be legislating for public funding for an advocate to act as a cross-examiner. This advocate would be able to be partisan, on the side of [B], and might only undertake the cross-examination. This would not advantage [B acting] in person by providing them with full case representation, and would also minimise the public funds required for this provision. It would enable [A] to be examined effectively by an advocate who could apply more scrutiny than an impartial judge whilst protecting [A] from being directly cross-examined by their alleged perpetrator.

 

Section 31T enables ‘a party to the proceedings’ to apply for a direction, or on the court suggesting that such a direction should be considered (s 31T(1)) so that B does not cross-examine A directly. The conditions for an application depend on the court considering either that a witness’s evidence will be ‘diminished’ (s 31T(3)) or that that witness will be significantly distressed (s 31T(4)). In both cases the court must decide whether, if the direction is given then the ‘quality [of a witness’s] evidence’ will be improved.

 

Avoidance of cross-examination of a complainant by defendant in person

 

The proposed s 31V deals with ‘alternatives to cross-examination in person’: that is where orders under ss 31R, 31S or 31T apply; and where the court considers there is no satisfactory alternative to cross-examination by B (s 31V(2)). In provisions which precisely replicate YJCEA 1999 s 38 the court must invite B to appoint an advocate (for which he will only rarely have legal aid). If B cannot appoint his own advocate the court must consider whether it should do so (s 31V(5): exactly as in YJCEA 1999 s 38(4)). The court advocate (C) appointed ‘represents the interests’ of B, but – according to s 31V(7) (as with YJCEA 1999 s 38(5)) – C ‘is not responsible to’ B.

 

In YJCEA 1999 s 40, payment for such advocate is guaranteed by statute. Payment for C under s 31W is left to regulations (to be made under s 31X), which can – of course – be changed or revoked much more easily that a statute.

 

Rules governing appointment and other issues arising from the bill will be governed by Family Procedure Rules 2010 (and see provisions in Criminal Procedure Rules 2015 Part 23). It is to be hoped that these new rules will be synchronised with what is going on with rules in relation to (1) other vulnerable witnesses (eg witnesses suffering from an incapacity in (say) children proceedings: now the remit of the VWCWG already mentioned); and the separate issues of (2) children’s evidence and (3) of their views and other participation in children proceedings. There are cross-overs between each subject; but they are fundamentally separate evidential issues.