This front page headline in The Guardian grabbed attention on 17 November 2017 :
‘Divorcing parents could lose children if they try to turn them against partner. Measures being trialled to prevent “parental alienation” feature penalties including permanent loss of contact with child’
Under that headline, journalist Amelia Hill wrote that Cafcass were trying out a ‘ground-breaking new process’ in cases of parental alienation. Hill defined parental alienation as a ‘phenomenon where one parent poisons their child against the other’. We think a better description would be cases where the hostile attitude of one parent leads to a child having negative views of the other that are not a reflection of the child’s own experience, and result in unjustified rejection of that parent. In other words, a child is more aligned with their resident parent than the non-resident parent, to the extent that the child cannot hold an independent view. At The Transparency Project, we were not aware of any new evidence on the prevalence or severity of alienation in the English courts so this article came as a surprise to us.
We had some concerns about aspects of the article, especially the way it gave a misleading impression of Cafcass having powers that they simply do not – for example to make parents undergo therapy and ‘In extreme cases, care proceedings will be initiated and the parent will lose contact with their child’. We were not alone in being puzzled. The Guardian published two letters in response to the article on 29 November: one from Emeritus Professor Jane Fortin whose research has shown that children – even very young ones – can have their own reasons for resisting contact, and one from an anonymous adult who felt s/he had personal experience of alienation when a child. Both letters objected to the coercive threats to children and adults implicit in the proposals as set out by Ms Hill (see here).
As part of our Family Court Reporting Watch project, which is funded by the Legal Education Foundation to check and explain media reports, we wrote to Cafcass to ask for a copy of the new document and were pleased when they offered us the opportunity to interview Sarah Parsons, their Principal Social Worker, and get some clarification of her comments in the article. We have written a lengthy account of the interview and our subsequent correspondence with Sarah Parsons, in : ‘It blew up too soon: Cafcass explain their position on alienation’. In summary, what we learnt from Sarah Parsons and information posted on the Cafcass website later that month was:
- Cafcass is developing a new High Conflict Pathway that it plans to introduce in spring 2018, after a period of consultation with focus groups. This will include, but be wider than, assessing parental alienation. It will not be used in cases where domestic abuse is involved (although answers from Ms Parsons on this were equivocal). Aspects have been piloted or tested in some places since November 2017.
- There is also a separate Cafcass Positive Parenting Programme (PPP) which is a four session programme running over 12 weeks for parents who have only ‘medium levels’ of conflict and who are willing to work together to try to become more child-focused. Referrals to this programme can be made from the High Conflict Pathway but presumably they will be only those cases which are assessed as falling short of ‘high’ conflict.
The connection made by Ms Hill between alienation and being made to attend therapy seems to have arisen from a conflation between these concepts of high and medium conflict. Cafcass has been clear that the PPP is not therapy (but uses therapeutic techniques delivered by Cafcass officers) and is voluntary.
Sarah Parsons declined to send us a copy of the draft High Conflict Pathway because it was not ready to share (although we were assured it would be shared with us when we and others are invited to focus groups in the New Year). However, we have subsequently seen a copy of a document titled: Draft practice pathway: a structured approach to risk assessment in high conflict private law proceedings. It is undated and contains many spelling and typographical errors but the front page does say it is published by Cafcass and available to its staff. It includes guidance on cases which feature domestic abuse and alienation and apparently hypertext links to pre-existing Cafcass tools and guidance located on their intranet (but of course we cannot access these although some are identifiable as pre-existing tools publicly available on the Cafcass site). We assume that this document is the second ‘pathway’ above, albeit apparently not in polished form.
The draft pathway and its place in family proceedings
We were struck by a rather odd theme running through the draft. In the context of the withdrawal of legal aid in private law cases and the current position of many parents having no legal representation, it is matter of concern to read Cafcass telling its staff that family court advisers have the:
‘… complex task of assessing whether allegations made within these proceedings are true, exaggerated or fabricated to inform the [welfare] decisions of the family court’.
On the following page in a box headed ‘Practice Note – Distinguishing between high conflict and domestic abuse’, practitioners are told that
‘This pathway must be used in conjunction with the domestic abuse pathway. The practitioners task is to first determine whether domestic abuse exists within the relationship before continuing with the High Conflict Pathway. Care should always be taken to ensure you have clearly distinguished between couple conflict and situations where there has been a pattern of coercive control.’ [emphasis in original]
Typically, Cafcass are asked to conduct risk assessments after findings have been made (as envisaged in PD12J) but the language of the document suggests something different: if it were envisaged that the risk assessment were to be based upon findings made by a judge, the various references to the need to ‘determine whether domestic abuse exists’ as a ‘first task’ would be redundant. Given that one of the stated objectives of the pathway is to ‘develop a better understanding of the early signs of high conflict and alienating behaviours in private proceedings to support and early intervention approach’ [emphasis in original], it appears as if this is a tool designed as an alternative to a slow and cumbersome judicial determination of facts through trial of evidence.
Rather than an approach to risk assessment as conventionally understood, this guide appears to be directing family court advisers (FCAs) to reach their own conclusions when presented with disputed facts, rather than refer such issues to the court. Although the first page includes references to Cafcass helping the court with ‘informed decision making’, the guide then goes on to tell practitioners that their role includes ‘determining’ issues of domestic abuse (and alienation), without mentioning the function of the court in determining facts. Cafcass officers are being told that they might ‘rule out’ domestic violence and other risk issues, without any expectation that serious allegations be drawn to the attention of the court for a finding of fact.
It would be very worrying if anyone, whether children and parents or professionals, were to interpret this guide as meaning that determinative decisions about the existence and effects of violence and abuse are taken primarily by social work practitioners in Cafcass instead of being subject to forensic examination. Similar questions about forensic process were raised in 2016, when The Transparency Project wrote about the Cafcass approach to domestic abuse which seemed, at that time, to be verging on an assumption that a Cafcass officer could decide whether or not an allegation was true before there was any finding of fact by a court. We received the following reply from Sarah Parsons, featured in our blog post dated 25 November 2016 ‘Open letter from Cafcass on their approach to domestic abuse’:
‘It has always been a social work task to investigate and assess. This inevitably involves assessing the credibility and coherence of the information assembled from all sources. We then arrive at a structured professional judgment – or a view – about what constitutes the evidence base, particularly in relation to child impact, which then informs our recommendations. This is nothing new: it is not a change in role or approach of Cafcass. The distinction between our forming a view and a formal finding of fact hearing is a crucial one. Some cases require a formal finding of fact or facts by a court, but not all cases.
It is not our role to decide on disputed facts and there is no suggestion that we are the final arbiter. We add value to the decision making process in family proceedings by assessing what is in a child’s best interests. Our role is quite rightly limited to making a recommendation, based on our assessment and view formed.’
Although we accepted that (somewhat ambiguous) response at the time, a theme does seem to be emerging here. Although their titles refer to risk assessment, neither the existing Domestic Abuse pathway nor the draft High Conflict pathway contain the term ‘fact finding’ nor any reference to the judicial role or court process, and there is clearly a risk that such documents may be interpreted in ways which are inconsistent with the judges’ fact finding function. Even if this is not what was intended the writer can think of at least one recent case in which she has been involved where a FCA appears to have been drawn into precisely that error.
The legal problems with this are obvious. An FCA’s ‘determination’ of grave allegations based on incomplete evidence, limited testing of that evidence, and the application of a few less than transparent tools (which are not routinely disclosed to the other party) – all within the limited number of hours reasonably available to a FCA working ‘proportionately’, simply cannot be Article 6 compliant (in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law). Cafcass cannot surely expect trial judges to abrogate their own duty to hear the evidence and adopt the FCA’s ‘determination’ as their own – and yet the ‘high conflict’ draft seems to encourage a FCA to go down one route and abandon other possible factual scenarios, leaving the court with a single recommendation that stands or falls depending upon whether the judge agrees with the FCA’s ‘determination’ after hearing all the evidence (and possibly falls even if the judge agrees because the officer has pre-judged matters).
Lest there be any doubt here, the law is very clear: the judge is responsible for determining the facts and making decisions, not the guardian nor any other expert (see for example In Re J (Adoption: Appointment of Guardian ad Litem)  2 FLR 86 and QS v RS & Anor  EWHC 1443 (Fam) (16 June 2016). The evidence of a FCA is primarily opinion evidence (although to an extent it will contain evidence of fact) which is consistent with Cafcass’s statutory function to advise the court. Under s 7 of the Children Act 1989 that advice is limited to ‘such matters relating to the welfare of that child as are required to be dealt with in the report’. But where a FCA purports to tell the judge which parent should be believed, they are elevating themselves in effect as veracity experts (whilst the court may be assisted by hearing an FCA’s opinion as to whether a child’s account has the hallmarks of coaching, the assessment of veracity of adults is quite a different thing). Even if an FCA had either the time, materials or expertise to act as such an expert, the role of veracity experts in family proceedings is these days very limited, particularly since the advent of FPR r 25.4 and is generally deprecated – because we have judges to perform that function and, as such expertise is held by the judge herself, no further assistance is necessary. As Baker J said in A London Borough Council v K  EWHC 850 (Fam):
‘The ultimate judge of veracity, ie where the truth lies, is the judge and the judge alone. He cannot delegate that decision to any expert. I acknowledge that a child psychiatrist… may be able to point out some features of a child’s account that add or detract from authenticity… But, in my experience, many of these features should be obvious to judges in any event. No expert, however experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence.’
See also Wigan Borough Council v M and Others (Veracity Assessments)  EWFC 8,  1 FLR 126 (6 February 2015); Re M and R (Child Abuse: Evidence)  4 All ER 239,  2 FLR 195; and Re M (Rev 4)  EWHC 2082 (Fam) (16 July 2015).
It may well be that the draft we have seen has been or will be superceded, but that these errors of principle should ever have appeared in a draft remains a matter of concern if it discloses a broader approach on the part of Cafcass.
In so far as parental alienation itself is featured in the high conflict pathway, there is nothing very startling or new – certainly nothing as radical as the picture painted by Amelia Hill. Towards the end of the Cafcass document, there is guidance on referring parents of a child who may be alienated to the Positive Parenting Programme mentioned above (although this is also little odd, because if a parent were deliberately alienating the child, they would not fit the criteria, as stated on the Cafcass website). But Cafcass estimates the prevalence of alienation as very low, at 2% of high conflict cases (Hill wrote that it was 11-15% of all Cafcass cases – we are unsure of her source). Nor does the draft (as Hill described) ‘spell out exactly when children should be removed from the alienating parent and placed with the “target parent”’. Although FCAs are told they have the job of ‘determining’ alienation, they are offered scant guidance on this in the draft. Two pieces of research are cited: Children who Resist Post-Separation Parental Contact by Fidler, Bala and Sainey (2013) and an unnamed work by Fidler et al (2011). We are unable to easily find a publication by Fidler dated 2011, but there are several books and articles by this Canadian team on the topic. Presumably these studies will form the basis of the ‘tools’ that Cafcass are developing.
We note Joanna Abrahams’ recent argument in Family Law at  Fam Law 1252 for introducing specific criteria for the judiciary and report writers on tackling cases where there is alienation, and that she believes Parliament should strengthen the courts’ powers to deal with these cases. While we are not sure how this could be achieved, it is important in the meantime not to lose sight of the current law, under which important decisions about a child’s future relationships are taken on the basis of evidence and recommendations, not solely on a social work risk assessment.
We look forward to hearing from Cafcass about its focus groups, where we hope the differentiation between these various pathways and their appropriate use will be explained. We are worried that, if we are struggling to obtain clarity about the role of Cafcass, there is a risk that Cafcass officers and parents will also be confused, with a real potential for the disruption of proceedings or a breakdown in trust and confidence. It is essential that any tools that Cafcass produces must make clear how they dovetail with the law, the court process and a proper forensic approach to disputed facts.
Post script : This article was originally written for publication in ‘Family Law’. However following communication from Cafcass, the publishers elected not to proceed. We have therefore taken the decision to publish the article here instead. Prior to publication we contacted Cafcass to offer a right of reply and in an attempt to establish what any objections to publication might be, but have not received a response.
[Update 21 Jan : We have realised that the emails we sent to Cafcass prior to publication did not reach them, but we have now re-sent them.]
Feature pic : Stephanie Lepoint on Flickr (creative commons – thanks)