Family Law Week this week included two articles on CAFCASS. The first commented on the Interdisciplinary Alliance for Children having published their joint position statement on the delivery of court services to children in family proceedings. The Alliance questions whether the CAFCASS model of service delivery is either the most effective in terms of outcomes for the vulnerable children involved or the most cost effective use of all the available resources both human and financial. he Alliance calls on the Government to act quickly as it considers that matters are now too serious to await the outcome of the forthcoming Family Justice Review. [1]The second article highlights The Association of Lawyers for Children having written to Anthony Douglas, Chief Executive of Cafcass, to express its deep concerns about Cafcass' apparent intention to attempt to manage children's guardians' caseloads by imposing restrictions on the work that they will be permitted to do between the Case Management Conference and Final Hearing in public law cases. [2]
Pull CAFCASS from private family law proceedings and focus their resources on public family law where there is 'real' concern regarding child welfare.
CAFCASS intervention and investigations in private family law, where there is no risk of significant harm is unwarranted and goes counter to The Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989. In that review, it was accepted that “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate”. Where there is no risk of significant harm, there should be a presumption of shared care, and no requirement for any CAFCASS investigation or court intervention beyond protecting this Article 8 Human Right. Otherwise, the courts unnecessarily, and arguably illegally, meddle in family life.
When parents come to court due to their being unable to agree arrangements for the children, there should be no CAFCASS involvement unless there are clear concerns that the children are at risk of significant harm. Where such concerns are raised, the matter should be elevated to public law, and a s.47 Core Assessment carried out rather than the light weight section 7 reporting by CAFCASS in private law proceedings. The court's primary function, where there are no such concerns, should be to safeguard the child's and both parents' right to family life, without further meddling.
Parliament's intentions for private family law and residence, as expressed in The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989), was that 'In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it. More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."
The granting of sole residence to one or other parent, and the industry that has grown up around it since 1989 and the inception of the Children Act has come about through undemocratic meddling by judiciary and Cafcass who were unable to let go of the earlier concepts of 'custody and access' which Parliament intended to be abolished by the Children Act.
20 years on, it's time for Parliament's intention to be put into practice, and Cafcass to concentrate on helping children in real need.
End Notes:
1. Interdisciplinary Alliance for Children publishes joint position statement on the delivery of court services to children in family proceedings: Family Law Week
2. ALC writes to Cafcass to express ‘deep concerns’: Family Law Week
