Last week, Cafcass in England announced and published a new policy about how they will make recommendations to court where domestic abuse is an issue. This is a brief rundown of what we think it will mean for parents and children facing family court proceedings.
- The policy says it’s about all children that Cafcass work with but almost all of it is only about disputes in private law. There’s no reference to public law proceedings where domestic abuse is a feature. This isn’t immediately apparent from the policy itself but is clarified by the press release. While the principles about recognising the impact of domestic abuse on all children would extend to public law cases, all the procedural points set out are on private law.
- Cafcass explain that they have been working on improving practice since the Harm Report came out four years ago. They set out how their training and practice have improved in consultation with expert and specialist external groups. So not everything set out in this policy is brand new; much of it is a summary of good practice that has been developed in recent years and is now expected to be consistently followed.
- So, what will change? First, there is a clear directive that if an adult tells a Cafcass officer about a sexual offence or serious criminal violence, then a risk assessment must be sent to court and a child protection referral must be made. This might usually happen anyway, but the policy says that if the local authority doesn’t respond satisfactorily, the Cafcass officer and their manager must ‘escalate’ the referral (i.e. chase it at a higher level in the local authority) so that the court can be assured about what it needs to do to keep the victims safe.
- If there is a report in any form of any type of domestic abuse or sexual offence committed by a parent the child is living with, this requires urgent assessment and also possibly a child protection referral.
- Where there has been domestic abuse and the case is about a child spending time with (i.e. having contact with rather than living with) a parent, the Cafcass report will need to make specific reference to the relevant court rules (PD 12J). It’s not clear here exactly what ‘has been’ means, but PD 12J is meant to be followed whenever domestic abuse is indicated.
- However, if the parent who wants contact is either being investigated for a sexual offence or has a conviction for a sexual offence, there is a new “starting point” that contact shouldn’t happen. A clear explanation is needed if the Cafcass recommendation departs from this starting point. The policy sets out the approach to following PD12J in a wider sense and taking a position of no contact if there’s an ongoing investigation or proof of a sexual offence. There is detailed procedure set out for considering recommendations when there has been a report of a sexual offence, depending on what stage the family proceedings have reached and whether there are criminal investigations or convictions. Direct contact would be restricted or suspended. Where there has been a conviction for a sexual offence, neither direct nor indirect contact would be recommended. As we know from the extensive publicity this year following Summers & TBIJ v White & ors [2024] EWFC 182 there has been at least one instance where unsupervised contact with a convicted rapist was recommended and accepted by the judge.
- There are directives about language. Victims’ descriptions of their experiences are not to be down played e.g a parent saying she was raped being re-worded into something more bland. (See an example in this TBIJ report where a mother is quoted as saying the Cafcass officer ‘couldn’t bring herself to write the word ‘rape’ in her report’ but had described the rape as ‘unwanted and inappropriate sexual approaches’.) Terminology such as a child or adult ‘claiming’ or ’alleging’ an experience should not be used but factually reported as ‘s/he said’ or ‘s/he told me’.
- In cases where Cafcass are recommending a fact-finding hearing plus a child protection referral plus a risk assessment for the court, any ongoing direct contact arrangements need to be reviewed. After a fact finding hearing, the child’s views on contact must still be considered and the recommendations put to the court in relation to their views.
- If abuse and harm have been ‘shared with’ Cafcass, they will need to provide clear and compelling reasons if they are discounting that harm in the recommendations. We think ‘shared with’ means ‘told about’. Therefore the Cafcass officer being aware of possible harm means it has to be taken into account.
- Any direct or indirect contact will normally be suspended if children are living in a refuge.
- A parent should not supervise contact where there have been abuse concerns, even if they offer or agree to.
- Assessment of a parent who has been abusive will follow the long established Re L, V, M and H [2000] EWCA Civ 194 principles (now incorporated in PD 12J) which include the perpetrator taking responsibility for the impact of their actions and addressing the harm they have caused, as well of course as whether contact can be safe.
- The policy contains several reminders of good practice e.g not to minimise abuse as ‘historic’, not to label a traumatised parent as mentally ill, not to assume parental alienation when a child doesn’t want contact.
The Cafcass Chief Executive said:
I am sorry that some four years on from the Harm Panel report, there are still children and adults in family court proceedings who do not receive the protection they deserve and require. Family Court Advisers and Children’s Guardians work hard through their assessment and advice to court to protect many children and adults from harm every day. But for those for whom this isn’t so, it is not acceptable and we are determined to continue to improve and to strive to protect every child and adult in family proceedings. The new policy that we are publishing today is a very significant step to further improve the way, together as a system, we protect child and adult victims of domestic abuse.