Little things sometimes matter (yes I’m a pedant)

Of course I am a pedant. All lawyers are pedants. The trick is to judge which of the little things you really should sweat.

Here's a little thing that I think does matter, or might in some cases. The C1A.

The C1A is the supplemental information form that Applicants and Respondents in cases involving child arrangements are supposed to complete where they are saying there are issues of domestic or other abuse. In the context of Practice Direction 12J and the Child Arrangements Programme, where the ethos is on early safeguarding, and on triaging cases so that they are safely conducted and so that the need for protective measures or fact finding exercises is identified early, these little forms really matter. Or they have potential to. But for some reason they are usually just ignored, especially the Respondent's C1A, which comes along later when the safeguarding train has already chugged off from the platform. That gets forgotten, like the middle sibling who nobody notices.

Take a recent example. Applicant father issues with a C100. Mother responds with a C1A. Cafcass carry out safeguarding checks (in which M raises domestic abuse but in a fairly non specific way) but don't recommend a fact finding hearing. The safeguarding letter is produced at the FHDRA, but it does not mention the C1A. Lo and behold, when checked CAFCASS confirm they don't have the C1A and haven't therefore taken it into account. They conduct a review and change their recommendation to one for a Fact Finding. What if I hadn't spotted it? A LiP wouldn't know to do this, and I almost missed it myself. The facts of the case don't matter here, its the process I'm interested in.

I've seen this sort of thing quite often. In another case of mine the C1A kept getting left out of the bundle. Applicants often don't seem to receive them (I think this is because it is unclear who is supposed to serve them - the rules say the court serves the C100 but don't specify with the C1A, and the form itself doesn't really help as it only talks about sending it to the court).

So anyway, because I am a saddo I checked the rules. Part 12 is useless. PD12C doesn't help. PD12B (Child Arrangements Programme says that the court will send CAFCASS the C1A if supplied no later than 2 working days after the date of issue (pa 8.9), but of course this is the APPLICANT'S C1A, by this stage the Respondent won't have even got the application probably. It goes on to say that 'The court shall not send Cafcass any other application...unless the court has made a specific direction...therefore, any application which is not in Form C100... will be returned to the court at which the application has been issued'. This just means, I think, that Cafcass don't want all the crud people tend to attach to their applications. But it isn't really about the C1A, which is not an 'application'. There is NO mention of a Respondent's C1A so it just isn't properly woven into the safeguarding process.

The C1A is mentioned in the bit about the Gatekeeping stage, but again the only C1A they will have at that early juncture is the applicant's C1A. It is usually the Respondent who fills in a C1A, because the preponderance of applications are by parents wanting contact when the other says it isn't safe. In the section heading Safeguarding - not a whisper about the C1A.

This is where it gets weird.

The C7 acknowledgment form says this. It firstly tells Respondents that if they tick yes to the various harm questions on C7 they must fill in a C1A. And then it says :

...When you have answered the questions make copies of both sides of this form. You will need a copy for the applicant, and each party named in the application for an order (form C1, C100, C78 or C79).

Post, or hand, a copy to the applicant and to each party. Then post, or take, this form, and the Statement of Means and Supplemental Information Form if you have filled one in, to the court at the address below. You must do this within 14 days of the date when you were given the Notice of Proceedings, or of the postmark on the envelope if the Notice of Proceedings was posted to you.

Now this seems to suggest that you are supposed to serve the C7 but just file the C1A.

AND it also seems to be the case that you have 14 days to do this. This is going to be quite close to the 17 working days Cafcass have to do their checks, although in practice Cafcass are I think sometimes given / take a little longer.

Now I would certainly not want to suggest that the safeguarding checks should take any longer than they already do - the wait for the court to actually DO SOMETHING when you are desperate to see your child is quite awful enough. But if the C1A is to have any purpose shouldn't it be properly fed into the pre FHDRA safeguarding process? Shouldn't the court be obligated to send it on to Cafcass, or shouldn't the Respondent be obligated to send it to them directly? Or perhaps even Cafcass should check with the court for a C1A as a part of their other safeguarding checks? They certainly don't seem to be picking up the existence of these forms from their safeguarding telephone calls and I guess many litigants would not know what a 'C1A' is if asked about it on the phone (even if they've completed it not long before).

One day, particularly where Respondents are in person and without legal aid, are frightened and inarticulate, a C1A might save someone's life. One day the neglect of what a C1A says might leave a child or adult exposed to harm. In most cases it doesn't matter, and it gets picked up at one point or another, and in many cases the allegations in a C1A are neither her nor there - but the point of these checks is to help the court distinguish which is which. So we really ought to do it properly.

14 thoughts on “Little things sometimes matter (yes I’m a pedant)

  1. A lot of this stuff is not in rules but in practice directions (PD) which many of us can only just understand; so where does that leave the LiP? And it must always be remebered that a PD cannot change the law.

    The answer is, don’t worry about the rules. Rely on the law. Any document filed at court must be served on the other party. It’s an ancient principle: anything seen by the court should be seen by the other party – ie sent to or ‘served on’ that other party. And if anything in the rules or PD says something else it may be that it is unlawful. FPR 2010 confirms this; and says only that ‘the court’ – ie not a rule still less a PD – can say otherwise.

    • The point is not really about service on the other party (though that is a bit patchy), its about service on Cafcass so that the C1A is deployed as intended. Its a waste of paper if it isn’t read and fed into decision making.

      • …and also when a complainant is in person if they don’t send it to the other side it then doesn’t go in the bundle prepared by the solicitors acting for the ex, and then even if the C1A has been sent to the court it languishes unnoticed on the file as the court relies on the bundle. I’ve certainly seen that happen.

    • Hi David, A problem is that practitioners (all sorts e.g. social workers) are relying more and more on guidance, protocols, local policies etc than on the law. e.g. recently a barrister in a court about 50 miles from where usually based was told ‘that’s the way we do it here’.
      You’d get short shrift if you replied to the judge ‘well perhaps you do but I prefer to rely on the law’.

  2. Bristling slightly, I was about to point out that any self respecting solicitor would make sure that everybody who ought to have a C1A would be served with a C1A. Then it hit me that your point is that people don’t have a self-respecting solicitor, by which I mean any solicitor at all. When you put it like that I agree with your point. This does matter. The Rules should make sure that the allegations of harm forms get where they need to go when LiPs are fending for themselves.

    Thanks again LASPO. I wonder if we will ever see the back of it?

    • Hi Adam,
      No I wasn’t having a pop at solicitors. My point was that even when served on the other side I’m not sure these are always getting served on CAFCASS for the purposes of safeguarding checks AND as you say in many cases there isn’t a lawyer anyway. Even if there is a lawyer whose job is it to send these to CAFCASS – I’m not even convinced a solicitor would be able to get a C1A through to Cafcass if they tried at this stage as they would not have the relevant case / contact details and Cafcass only accept material from the court.

  3. Step back for a moment and take a look at the big picture. Try and remember that the purpose of this process is the welfare of the child and the application for contact is to uphold the child’s right to family life. You rightly point out that “the ethos is on early safeguarding”, but you’ve become blinded by immersion in the system.

    When one parent denies the child a relationship with the other parent without applying to court they do so with no legal basis. They have set themselves up as judge, jury and executioner, assuming some non-existent right to decide the child’s family ties. There is no such right, the right to family life can only be severed by proper authority, which is not the parent keeping the child “safe”.

    The parent who stopped contact without authority and forced the other parent to apply to court is by definition an abuser and in my view is too late to start saying they are a victim. Responsible parents are just that, responsible, they make the proper applications and get the proper authority to make the decision. I would expect you to make clear that is what they should have done rather than concentrate on their late attempts to justify their abusive actions.

    • that is a fatuous argument Brian. No parent has a ‘right’ to abuse their child, whether that be through exposing their child to domestic violence or assaulting or emotionally abusing them. Whilst it is right to criticise a parent who stops contact for no GOOD reason, the prevention of harm seems a pretty good reason to me. And in the absence of an order that is not legally impermissible. Your approach seems to lead to the proposition that a parent who has witnessed or genuinely believes the other parent is harming their child should continue to allow that to happen? Is that really what you think? Of course the system can be abused, but there are genuine cases of abusive parents and both parents and judges have to take that seriously.

      • The parent that stops contact without a court order does not have the authority to do so. They must apply to court to explain their “GOOD” reasons. If they don’t, then who is the “good” parent, the one who decides they will sever the child’s relationship with the other parent without a court order? That would lead to the situation I described, which is happening far too often. That would lead to the abuses of power that we see one parent inflict on the child and the other parent all the time.

        You cannot possibly support the severing of a child’s relationship with the other parent against that other parents wishes without a proper legal basis? What about the child, shouldn’t they have a say? The Children Act says the court should consider their ascertainable wishes and feelings, why would you disagree with that?

        What are the “GOOD reason”s you speak of, can you provide a checklist of what is acceptable as a reason? Can we list the unacceptable reasons? This is why the courts exists, to decide whether the parent stopping contact is right, precisely because that parent can’t decide for themselves.

        • I have not suggested a parent should stop contact without good reason. A parent can only act on their best judgment on the information available to them at the time. If there is a dispute that cannot be resolved one of them will need to ask the court to intervene.

          Undoubtedly some parents do stop contact without good reason – sometimes knowing their reason is not a good one, sometimes in the belief that it is sound.

          I don’t disagree with anything in the Children Act and I don’t really think that any checklist I could provide would be better than the flexible and time tested one in the Act itself. Domestic abuse may be a good reason, or some other risk of significant harm to a child. But exercising parental responsibility is not a tick box exercise. If it were the Children Act would be drafted very differently – but it all depends on the circumstances.

          Incidentally, you conflate stopping contact (for example after an assault and until the matter can get to court) with severing of a relationship. The one does not necessarily flow from the other.

  4. God, I misread the headline and thought you were pregnant.

    Pedantry – well aren’t we all?

  5. Hi Lucy, thanks for this post.

    If someone doesn’t send in the C1A at the start of family court case, does that mean they can’t raise issues of domestic abuse further down the line? Or if they do, will it be taken less seriously (or even go against litigant *gulp*) as they have not been first raised formally in c1A?

    • no it doesn’t mean that these things can’t be raised later on, but obviously if you haven’t raised it at the start the court may ask why that is.

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