This week The Transparency Project were invited to attend an event at Portcullis House hosted by Only Dads and Only Mums, with Jess Phillips MP. Our Lucy Reed went along…

The format was a series of short panel presentations with brief points made after each – the answering of questions arising was parked until the end – followed by a more free-form discussion. It was a useful and constructive discussion, but there was simply not time for all, or even most, of the questions posed to be answered, which was a shame. The invitation to the event posed the question “What about Henry?”, a reference to the hashtag that emerged during the culmination of The Archers’ recent domestic abuse storyline, when poor Henry (one of the children at the centre of it all) seemed rather forgotten, as is so often the way in adult disputes.

On the panel were :

  • Polly Neate, CEO Women’s Aid
  • Liz Coe, National Assn Child Contact Centres
  • Sarah Parsons, Principal Social Worker for CAFCASS
  • Norman Hartnell, solicitor (Chair)
  • Lisa Crindell, NSPCC
  • Lucy Mead, solicitor

I couldn’t hope to cover the whole range of discussion, but aim to draw out some points that I felt were particular important to the remit of The Transparency Project. Summarising though, the main theme to emerge was the inconsistency of understanding about domestic violence (in particular of coercive control), and inconsistency of application of our learning and guidance in the field – for example through inconsistent application of PD12J (see below), inconsistent approaches to special measures and protection of vulnerable witnesses. Much mention was made of the injustice of cross examination of complainants by those accused of abuse (mainly from the perspective of injustice to [amended :victims complainants] rather than the other way around), and it was said (apparently anecdotally) that this happens frequently. Lawyers in the room however, shared experiences of work-arounds being found to avoid direct questioning. There appeared to be a consensus that lack of resources meant that courts were hampered from doing their job as well as they might.

On the topic of coercive control – which has become a bit of a hot topic since becoming a criminal offence late last year, and since featuring in The Archers as a key storyline – several contributors raised the still emerging understanding of the significance of non-physical forms of abuse. What wasn’t noted was that PD12J, the Family Court’s main piece of guidance on how to deal with cases involving domestic abuse and violence, said by Polly Neate to be a “brilliant” document (we agree), has been around for years – and since at least 2013 has held a definition of coercive control in line with the then cross-departmental government guidance. The family courts have had coercive control on the radar for some time, but nonetheless there are legitimate concerns about how this sort of allegation is dealt with in practice, as they are difficult to present and prove, and can get lost in “proportionality” arguments, as they can be seen as on the less serious end of a spectrum and can be time consuming to determine. Raised, but not resolved, was the tricky topic of the pursuit of proceedings or the withholding of contact, each potentially being examples of controlling behaviour. How, it was asked rhetorically, should a father who is simply pursuing a contact application supposed to deal with the suggestion that this is in itself an act of abuse? Was the withholding of contact itself coercive control? The answer for the panellists was to refocus on the rights of the child rather than the parents, but whilst that is self evidently right – it presents no practical solution for parents in such scenarios, who are in their eyes doing only what is necessary and in the interests of their child.

Polly Neate of Women’s Aid made some assertions about the operation of family courts which echoed those in the Women’s Aid Child First Campaign [disclosure – Lucy Reed, who attended the event and wrote this post has written critically of that campaign here : Nineteen Child Homicides and here : We Believe : Doing Violence to Due Process]. I asked what the evidence base was for the assertion that Practice Direction PD12J was frequently not followed. The question was aimed at understanding whether it was possible to identify the extent of the problem – whether failing to follow this guidance was a rarity or a commonplace. The assertion appears to be based upon the results of a survey of victims of domestic abuse who have been asked to give their experiences. That is a valid source of information but has its limitations and probably doesn’t help in quantifying the extent of the problem. I asked whether Womens Aid could clarify by giving more details of the survey – for example were the women surveyed people who had been found to be victims of domestic abuse, or were they people who self-identify as victims but whom the court had found not to be (and do Women’s Aid even know the answer to this question?). I asked if there was any other, objective source of information, and in particular if Women’s Aid had done any work in courts. There simply wasn’t time for Polly Neate to give an answer to this question, but we will flag this post to Women’s Aid in the hope that they can respond to close the loop. The organisers of the event have asked for feedback and in particular for unanswered questions to be sent in, so we hope that through that route some answers might be distributed. We think its important to do our best to understand the extent and detail of problems with how the system works, in order to properly target our energies on the biggest / most acute problems.

The second major point (from our perspective) that arose in the course of this event, was around the role of CAFCASS officers in cases involving domestic abuse. There was some discussion about the pressures on family courts and the reluctance in some cases to hold fact finding hearings, which were costly and caused delay. In that context, Sarah Parsons, Principal Social Worker for CAFCASS said this (taken from our contemporaneous note which we have compared with one other attendees for accuracy, not verbatim – we’ve used brackets to show where we’ve added in words from memory) :

if [there is going to be] no fact finding hearing it is up to the social worker [cafcass] to almost conduct a mini fact finding enquiry through interview, trying to establish the facts…what’s in best interests…ask questions. We also use tools such as Barnardo’s DV risk indicator matrix, safe contact indicator. These are externally validated.

Subsequently she volunteered some clarification those remarks, saying that CAFCASS use “evidence informed practice”, and that she had been referring to the practice of producing a report on an “either / or” basis (this is the practice of making recommendations on alternate hypothetical scenarios that disputed facts are proved or not). She went on to say that reporting in DV cases involves nuance, and is a subtle sophisticated task that is required to avoid drift and to enable contact if that is appropriate. She then observed that some women feel unable to go through a trial.

We asked a question about this because we thought it was really important that the position of the principal social worker at CAFCASS, who is responsible for professional practice throughout the organisation, was clear. The second explanation of the role of CAFCASS was uncontroversial, but the initial one was not. Although the clarification appeared to mean that it was not in fact being suggested that CAFCASS should decide about truth, the last remark about women feeling unable to go through a trial, when taken in context, begged the question whether it was thought acceptable or necessary for CAFCASS to “form a view” about truth in lieu of a trial (it isn’t acceptable, for reasons we explain below).

I asked for clarification : was CAFCASS suggesting that where a court did not propose to hold a separate fact-finding hearing, a CAFCASS officer should effectively “find facts”? I explained the purpose of the question was to ensure that confusing messages were not sent out to professionals and families about what the role of CAFCASS was, and wanted to be absolutely clear as to what was being said. I explained that The Transparency Project are planning to produce guidance on the topic of domestic abuse and how it is dealt with in courts because there are so many misconceptions and unrealistic expectations (including the fact that women who decide not to go through with a trial have to come to terms with the fact that in law the court must then treat their allegations as unproved). The response was this :

I don’t mean it in an evidential sense. We use tools, and look at duration [of abuse – whether sustained or at the point of separation], frequency, recency and [coercive] control. body language, the level of detail conveyed, [and make a] judgment about that. And then make a recommendation based on that. A fact finding of sorts.

When challenged about whether it is appropriate for Cafcass officers to undertake what is ostensibly the court’s job of investigating the truth of matters alleged, Sarah Parsons said emphatically :

That IS our role, it is absolutely what our safeguarding role is. Cafcass’ remit is to safeguard children and to explore the issues relevant to the child.

We are really worried about this. It may be that Sarah Parsons has not explained herself clearly, but the words used clearly suggest that a CAFCASS officer will, and ought to, assess the veracity of a parent’s allegations through their responses in interview, and should form recommendations based upon that assessment. If this is the message or instruction that is being given to CAFCASS officers they will be led astray – it is wrong in law.

Where there is a dispute about it, the person who decides WHAT HAS HAPPENED IN THE PAST (the “arbiter of fact”) is the judge. And only the judge. The role of CAFCASS is to advise the court on welfare issues, not to “assist” the court by prejudging the matter on their behalf. If a CAFCASS Officer feels they need to know what happened before making a recommendation they must say so.

What Sarah Parsons appeared to be suggesting is that sometimes a CAFCASS officer has to fudge it because the court isn’t holding a fact-finding hearing where it ought. The answer to that is to revert to the court and explain why a report cannot be prepared without findings OR to write a report on an either or basis.

We can’t in this blog post set out all the legal explanations for why the idea fact-finding being delegated to CAFCASS is wrong in law (and a very bad idea), but here are some buillet points :

  • Risk of going astray or conflict with judge. If a social worker decides an allegation is (say) true they may intentionally or subconsciously disregard or attach less weight to information pulling in the opposite direction – it is likely to colour their perspective of the whole case. What if the judge decides their hunch was wrong? Their recommendation is worthless – and they may not even have addressed the alternative scenario. Even if the judge agrees this opens a CAFCASS officer up to allegations of bias or prejudging.
  • Presumption of innocence and right to a fair trial. A person accused of really serious and possibly criminal behaviour that might lead to them not seeing their child again or having their relationship with their child restricted is entitled AS A MATTER OF LAW to a fair trial before decisions are made. The person making the allegation must prove it. A judge can’t (or shouldn’t) just adopt the CAFCASS Officer’s view on who is the more believable in interview when making decisions. They would be rightly appealed if they did.
  • Risk of wrong decisions. We have trials for a reason : because it is really important to do our (fallible) best to get it right when we decide on the truth of allegations of abusive behaviour, so we give both parties a proper opportunity to present all the evidence and to test it. One or possibly two short interviews are not remotely equivalent. The forensic trial process is imperfect but it is a totally different exercise to a social work interview : for example body language and oral self report are likely to be a less significant feature of a trial process. What someone says very plausibly in interview may be demonstrably false or impossible when compared to other contemporaneous or independent evidence.
  • Delay. In any case where a parent on the wrong end of a report is represented by a competent lawyer, the prejudging of disputed facts will be challenged – probably successfully. It is likely to lead to one of – the matter being sent back for a fresh report, the disregarding of recommendations or an appeal.
  • It need not be said that in each of the above bullet points there is a risk that the child’s best interests will not be served (poor Henry, we’ve left him till last again) – either they will be exposed to the risk of a wrong decision or delay, or their own rights to family life and a fair trial might be infringed.
  • Read PD12J which clearly anticipates that the facts will be found by the judge, and CAFCASS advise ON THE BASIS OF THE PROVEN FACTS.

Finally, a punchy reminder of the absolute *lack* of nuance in the law in this area, see Lord Hoffman in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141 :

“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden or proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.’

Once again, we will flag this post to CAFCASS and ask them to respond and offer clarification, reassurance or a rebuttal of what we say. We will happily publish any responses we get on this blog and would welcome further discussion on these topics. We are grateful to the organisers, panellists and participants in this event for getting the ball rolling on a difficult and challenging topic.

[Update : You can read CAFCASS’ open letter response to this post here and our preliminary thoughts on that here – do let us know what you think.]

[Update 11 Dec : We had contact from Women’s Aid last week and they have offered to answer any questions that we would like to ask. We’ve sent them some queries and we’ll report further when we hear back. We hope to publish their replies on this blog, probably in a fresh post.]

[Update 11 Jan 2017 : We’ve heard back from Women’s Aid and you can read their response to our queries here.