There is a new pilot scheme running, which allows parents in certain court areas (including my own) to submit their applications for a Child Arrangements Order (form C100) in an online format. It is only open to parent who are in dispute about child arrangements where they are in person, so this pilot site is one which litigants are expected to navigate on their own.
Given that approaching 40% of children cases now involve no lawyers (and another 40% only one), and given the onerous nature of the 20+ page paper C100, this is a sensible step and has real potential to make the system more manageable for litigants and court staff alike.
You can find the link to the pilot scheme here.
Be warned though, this is an ‘Alpha’ site – and some users will be asked questions that in my view are inappropriate and unnecessary. I discovered them a couple of nights ago rooting around the pilot site to see how it worked, and immediately emailed the team responsible for it to raise my concern.
Although many of the questions will be familiar to those who have completed or read a C100 form, many of them are not – and I was surprised to see such invasive and detailed questioning in such a lengthy sequence. I had expected a process designed for litigants in person to be more simplified and streamlined, not even more involved than the paper version. As best I can guess, the process through which prospective applicants are taken is in part aimed at replacing safeguarding telephone interviews, in that questions drill down to the detail of concerns or allegations in a way which is far more involved than even the accompanying C1A form, and about the sort of personal detail that would ordinarily only be probed for by a professional once the process has been started. Because of the linear nature of the process, it is impossible to progress to the next question without completing a box that requires an answer.
The only way to progress past a question that the applicant is unwilling or unable to answer is for the applicant to type some gobbledigook in the blank box and click next. Of course not all users will work this out.
This might not matter, but there are several questions in this sequence which are likely to distress some parents, and which I think may cause them to abandon their applications. Where a parent indicates that they have some concern about theirs or their childrens’ safety or welfare, they are told that they must answer some further questions to help the court ‘consider any risks’.
They are told that the questions might be difficult or upsetting but that they should do their best to answer. Amongst the questions that follow are some slightly odd questions about whether the children have been financially abused, and then – more concerningly – very direct questions about sexual abuse perpetrated against the person completing the form.
The initial question is inexplicably broad ‘have you ever been sexually abused?’, and once the answer ‘yes’ is selected the user is presented with a demand to ‘provide details of the sexual abuse’, and if it has stopped the date it stopped. There is no option ‘I prefer not to say’ option and you cannot simply leave the boxes blank or it returns an error message.
Elsewhere, many screens before, there is some small text below a general question ‘Have you ever suffered or are you at risk of suffering domestic violence or abuse’? that reads ‘only include abuse by the people in this application or someone connected to them’. There is no such caveat or clarification with the sexual abuse question.
It seems inexplicable to me that a person should be asked to disclose details of sexual abuse that may bear no relevance to the application in hand, that may have been perpetrated years ago by an unconnected person, that may have no bearing upon current wellbeing or parenting capacity. It is utterly insensitive to present this demand in this way without caveat.
Beneath the question about sexual abuse there is a small clickable link to more information about ‘Why do we need to ask this?’ that explains (if noticed and if clicked) that it is for safeguarding purposes and will be used by CAFCASS to advise the court. Although there is a general question elsewhere about privacy of contact details, there is no clear explanation as to who will see the substantive responses to the questions posed in the online process. From the review page at the end of the process it appears as if the whole set of extended questions is treated as if it were part of the C100 i.e. for service on the respondent(s), I do not think that this process is sufficiently transparent in terms of making clear who will see the sensitive personal data being collected and what it will be used for.
This is, I hope, all an unintentional mistake that will be swiftly remedied – it is a pilot after all. But it is a serious problem. I am worried about it because a respected legal academic who was consulted about this proposed pilot has publicly stated that this sort of question was inappropriate and unnecessary – and the MOJ appear to have gone ahead with it anyway. It looks as if this may not simply be about converting the existing form to an online one, but also about changing the way in which information is gathered and processed for safeguarding purposes (to include gathering MORE data) – and in particular to assist with early identification of families who may be potential child protection cases. IF the question about sexual abuse is an intentionally broad one, as opposed to hamfisted drafting, it suggests that there is some sort of underlying assumption about the statistical risk associated with parents who are victims of abuse. I would like to see the evidence / research base for any such assumption – I do not think it is at all obvious that one can use data about whether a person has been a victim of a particular type of abuse to predict risk to their children. IF this project is about anything more than transitioning from snail mail and paper to digital then there should be a consultation and far more transparency of purpose – and frankly it should have happened before launch of the pilot.
Why does it matter?
Obviously it matters because this is a clumsy attempt at gathering very sensitive personal data that might well be traumatising, or at the least upsetting for some parents, and I just don’t see it as necessary.
But even putting questions of trigger warnings to one side, it matters because parents are vulnerable. And because parents are fearful. And suspicious. And easily confused. I don’t think that a bland warning that some of the questions might be upsetting is good enough if the questions asked are drawn like sledgehammers. It needs to be absolutely crystal clear what HMCTS will do with this information – not least because it appears that the consequence of answering the sexual abuse questions might be identify a person entitled to lifetime anonymity to a third party (the respondent), without any consideration of what risks that might give rise to.
It matters because the perceptions of and reactions this sort of thing may be as damaging as the reality.
Parents may form the impression that this data will be passed to their ex, their abuser, to social services – that it may be used against them in some way. As currently drafted it would not be unreasonable for a parent to be worried that if they disclose sexual abuse this information might be passed seamlessly to social services and used against them ‘for future risk of emotional harm’ (as one parent suggested to me today on twitter). If a process designed for vulnerable litigants in person is capable of cultivating this fear and worry, it is the death knell of parental engagement and of trust and confidence.
Parents may fail to complete the process (there is a warning at the end of the form that making a false statement may lead to prosecution which would never have applied to a parent who didn’t fill in a C1A but now appears to expand to a failure to be frank about any sexual abuse ever experienced).
Parents who do complete may have given inaccurate information that needs later to be corrected, with obvious ramifications for their credibility.
Respondent parents could conceivably use the information to harass or manipulate the applicant parent once served. Where this information is gathered via CAFCASS safeguarding interview it is at least possible for CAFCASS to request to withold their safeguarding letter (not that they would be likely to ask such a broad, blunt, brutal question in the first place), but here the incorporation of the information in the actual application means that the Respondent is ENTITLED to see it.
I emailed when I spotted these issues to the email address at the top of the alpha site. I will update this post when I’ve heard back from the team responsible for the site. So far I’ve heard nothing, but the HMCTS twitter account have responded to tell me my message has been passed on.
Hello Lucy, we’ve passed your feedback on, and someone will be in touch with you directly via email to follow up.
— HMCTS (@HMCTSgovuk) July 4, 2018
The team are asking participants to consent to being emailed for feedback on the process, and I hope that feedback will be thoroughly evaluated prior to rollout. I would guess, that quite apart from the specific issues I have raised, this process is probably too lengthy to be manageable for many litigants, although fortunately the language seems much less technical than that on the reissued paper C100 this week. I tend to think that even once wrinkles are ironed out it will not be a process that all litigants will manage, and there will need to be some sort of paper process retained for those with literacy, language or technological barriers to access.
UPDATE 27 July 2018 : A few days after this post I had an email from the MoJ Family Justice Policy Unit saying that they were taking on board the issues I’d raised. We’ve been playing voicemail tag since then but they tell me they are continuing ‘stakeholder consultation’ and to that end I’m hoping to attend a meeting in the not too distant future. They tell me some adjustments have already been made, but it sounds like it’s a bit of a work in progress. More then…