Vardags Family Law Essay competition 2023/24 | Helen Ross  

Helen Ross  - University of Law, London 

ANALYSING WEAKNESSES OF THE CAFCASS SYSTEM AS IDENTIFIED THROUGH THE HARM REPORT 2020

Introduction

Cafcass is a public institution founded under the Criminal Justice and Court Services Act 2000. Cafcass provides legal jurisdiction safeguarding, documenting and promoting children’s welfare; however, based on the Harm Report of 2020, the institution has not achieved the underlying objectives. The report features two main sections and a secondary section.

• Changes and challenges. The section documents the necessary changes for the Cafcass system, noting the system’s effect on the family courts (2.1). The section further narrows down to Cafcass system’s challenge in tackling serious crime (2.2). The section terminates with a contributory factor of the shortcoming of the Cafcass system (2.3).
• Analysis of the Utility of the Harm Report 2020 Recommendations. The section explored the critical challenge based on the harm report of 2020, hoping to estimate the exact challenges facing the Cafcass system. It notes the lack of guidance (3.1) of the system the major setback followed by the possible challenged attainment of effective child protection (3.2). The system also faced challenges in understanding pre-contact jurisdiction (3.3) and the possible poor understanding of advisor appointment (3.4).
• Way Forward. The section advocated on the possible ways forward concerning a challenged Cafcass noting the main challenge of the Cafcass system on how it prioritised parental interests as opposed to child allegation of domestic or sexual abuse.

Overview of the Cafcass System

The Government identifies that Cafcass is a system whose sole mandate is to illustrate minors in the scenario of cases within the English family courts. Primarily, the work of the Cafcass is considering ’child alienation’ as the basis for advice regarding parent to child abuse. The concept of ’parental alienation’ is defined as "while there is no single definition, we recognise parental alienation as when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent."

1. The Harm Report of 2020

The Harm Report of 2020 delved into children’s welfare  and the gist of private children proceedings under s.8 in interrogating Cafcass’ efficacy in protecting children in England. Under s.8, the Children Act 1989 empowers the family court to adjudicate on an application relating to the arrangements of a child’s welfare, thereby rendering critical decisions concerning parental involvement, residence, and contact, s.1(3) reiterates the guiding principles that help the family court arrive at the most amicable decision based on the child’s welfare and the ‘welfare checklist’. The Harm Report 2020 identified critical issues inherent in the Cafcass system of children welfare within England, including concerns relating to parental involvement/alienation and children’s safety in the justice system. Re F’s decision further depicted the high level of Cafcass’ ineffectiveness due to the inherent failure of the available avenues to tackle abuse of children at a domestic level or related severe offences that arise during parental disputes. A summary of the weaknesses include:

• Pre-contact jurisdiction. The traumatic experience of domestic abuse survivors and children, often demonstrating reluctance to visit family court advisors.
• Appointment of Advisor. Family court advisors are often advocates of the Cafcass system who in return, influence legal decisions.
• Challenged attainment of effective child protection - a major weakness of the system, attainment of effective child protection where the system fails due to the cessation of parental involvement, adjustments from primary caregiver to non-resident caregiver.

1. Methodology

A positivist methodology sampled reports and articles from different authors.

However, the Harm Report is the foundation of this study. The study’s factual knowledge promotes positivism while recreating an opportunity for appropriate assessment of different reports that will improve the model of different sampling articles. Following collective opinion from the sampled material (around 35), the analysis was chosen to shine a light on the harm caused to children identified in the Harm Report and offer solutions that would improve the Cafcass system.

Changes and Challenges

1. The Necessary Changes to the Cafcass System

The Cafcass system shows significant weaknesses that hinder the adequate protection of children. In particular, Cafcass is primarily responsible for making critical decisions that influence children’s affairs within the family court domain, the system is incapable of offering adequate protection to children within the jurisdiction from the potential risks of harm.

 According to Djanogly, the shortcomings of the Cafcass System warrant the need for adjustments within the law to safeguard the rights of children. The legal framework governing the conduct of the family court, states that the court must undertake actions or decisions in the child’s best interest. In contrast, the Harm Report of 2020 explained the discrepancies evident from the Cafcass system because there are notable claims of potential harm that arise to children in the course of private proceedings. Additionally, victims’ parents are at risk of harm under the system, thereby defeating the Cafcass system’s objective. The current analysis of the Cafcass system in its daily practice are geared towards ensuring effectiveness in family courts’ system, there are underlying systematic concerns that aggravate the risk of harm to children and their parents during parental disputes. Therefore, there is a need for prompt identification of the challenges to ensure adequate measures are formulated to manage or mitigate the potential risk of harm among children during protracted proceedings.

1. The Challenges in Tackling Serious Crimes/Abuse under the Cafcass System Similar to the Harm Report 2020, a past report by Cafcass highlighted some of the pivotal concerns in England’s private children proceedings under the Cafcass system applications. Specifically, the concerns included an allegation of the family courts’ inability to conclusively handle issues relating to the sexual abuse of children or domestic abuse during the proceeding, thereby justifying the advocacy for changes. Concerning children, the court provided an avenue for the discourse concerning the standards for adoption by a family court in ascertaining the welfare of children. At the core of the decision were issues of contact and residence, as critical subjects that explain a child’s welfare, with the appeal court’s decision reiterating the need to protect the rights of children. Recent proceedings depict serious problems within the Cafcass system. The family court records under such applications include the hectic court procedures that are traumatic to the children and children arrangements that do not consider the welfare of the vulnerable population while prioritising the father’s benefits. According to Djanogly, most parental disputes involve unending litigation instances, which increase the jeopardy of harm to children.
2. Contributory Factors to the Shortcomings of the Cafcass System

The Harm Report of 2020 traced some of the contributory factors that hinder the Cafcass system’s effectiveness and the family courts to sufficiently address concerns related to risk or harm or the potential harm to children during private proceeding applications. In particular, as presently constituted, the Cafcass undergoes serious shortage of resources due to the increasing instances of applications required for the private proceedings involving children. This aspect of resource constraint prevents the Cafcass system from adequately focusing on the details of a specific case to uphold the welfare of a child. An increasing number of children or disputing parties are forced to appear in court without the required legal representation, which adversely affects the adjudication process in private proceedings before the English family court’s jurisdiction. Another aspect that leads to Cafcass’ ineffectiveness and the impracticality of the family courts’ decisions in private children proceedings is the culture that supports the creation of contact amongst parent and child who is a non-resident. As explained by Kaganas, the culture significantly contributes to the methodical minimisation of claims related to domestic or sexual abuse during Cafcass submissions before the court. The absence of coordination or communication among the different players/stakeholders in the justice system is a further hindrance to the work of Cafcass. For instance, the lack of coordination between participants in charge of child protection, players within the criminal justice niche, and Cafcass as the driver of private proceedings creates an avenue for the confusion that adversely impact children by aggravating the risks of harm. Lastly, as explained in Re P, England’s legal system is premised on an adversarial approach that antagonises the parents during disputes, hence increasing cases of trauma as children remain uninvolved in the decision-making process during the private children proceedings.

Analysis of the Utility of the Harm Report 2020 Recommendations

1. Lack of Guidance

The guidelines created under the Family Procedure Rules of 2010 stipulate the direction that a family court should embrace during private children proceedings when claims of domestic or sexual abuse arise. Specifically, the Harm Report 2020 explained the shortcoming evident in the Cafcass system as the provision under the guidelines on how to deal with an arrangement case for a child is not effectively enforced, leading to inconsistency within the justice system. The implementation is especially problematic where a parent uses parental alienation as a defence or recourse to defeat domestic abuse claims in a Cafcass application before the court, a departure from the perspective supporting fathers, as justified by O’Connor.

1. Challenged Attainment of Effective Child Protection

Additionally, another obstacle to the attainment of effective child protection under the Cafcass system is the inconsistency regarding the decision to change residence, which majorly occurs based on opinion instead of evidence. The current analysis differs from the recommendation presented in the Harm Report 2020 regarding parental involvement cessation, as captured under section 1(2a) of the Children Act of 1989. In support, the McKenzie Briefing suggested an amendment to the provision to tackle the presumption’s detrimental implications relating to parental involvement within the jurisdiction. However, it is noteworthy that the cessation of parental involvement could prove problematic in instances where the residence of a family is adjusted from the primary caregiver to a non-resident caregiver. The cessation of parental involvement could become the subject of exploitation in applications under the Cafcass system which primarily supports a pro-contact perspective or culture in private children proceedings, a position reiterated by Munby.

1. Pro-Contact Jurisdiction

As previously explained in the Harm Report 2020 context, the support for the culture of pre-contact under the Cafcass system is a notable weakness of the system as it enables most non-resident caregivers to escape claims relating to domestic or sexual abuse, which is detrimental to a child, as this aggravates the risk of harm.

Further, the approach exacerbates the fear or traumatic experiences among children. The vulnerable population shows reluctance to visit or engage their non- resident caregiver/parent, as emphasised by Diduck and Kaganas.

1. Appointment of Advisors

Another startling development under the Cafcass system and the family courts is the appointment of advisors to present the children’s perspectives during a private child proceeding. As presently constituted, Cafcass has deviated from its primary objective of raising children’s concerns and acting in the best interest of the vulnerable population. Instead, the system prioritises the parents’ interests (fathers) in cases of domestic or sexual abuse claims. Under the Cafcass system, the agency is mandated to make requests to the family court in private children court records to protect the children’s interests.

The suggestion for the cessation of contact as recommended under the Harm Report of 2020 will potentially impact mothers and their children adversely as Cafcass may utilise such a recommendation against mothers who have lost contact with their children. The judge in F v L explained the effects of the departure from a child’s interests who leads to risks of harm to mothers and their children. As reiterated in the F v L, the Cafcass system supports parental alienation as victims of domestic or sexual abuse, especially protective mothers in family disputes, as the basis for positively persuading a family court to transfer the residence of a child to a potential domestic abuser. Bainham and Gilmore explained that children are continually separated from their mothers as the primary caregivers, in instances where the father, as supported by Cafcass, use parental alienation as a defence, thereby refuting the allegation of sexual, violence, battery, assault domestic abuse which increases the risk of harm to the children.

Way Forward/ conclusion

The recent trend demonstrates family court is most inclined to adopt the recommendations of Cafcass while excluding any other external evidence in the adjudication of cases concerning child provisions within the jurisdiction. However, the Cafcass system’s trend prioritises the interests of the parents (fathers) as opposed to the child during allegations of domestic or sexual abuse is startling, and a fundamental departure from the objectives Cafcass. Therefore, the Harm Report of 2020 contains elaborate provisions concerning the weaknesses inherent in the Cafcass system and provides viable recommendations for adoption to tackle the highlighted culture of failure of Cafcass to realise the intended objectives for establishing the agency.

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