This question was asked by HHJ Scannell at a private law hearing in Cardiff Family Court I attended last week. The judge explained to the two parents in dispute that she hoped they would take a problem-solving approach, in accordance with the Pathfinder principles. The Pathfinder pilot for family courts was extended to two busy court areas in April, Birmingham and Southeast Wales; HHJ Scannell is taking the lead on it in Southeast Wales. Where the Pathfinder operates, the court tries to identify at an early stage those cases where there are safeguarding or abuse issues and those that are suitable to be resolved through non-court dispute resolution.
HHJ Scannell recently published an appeal judgment from Cardiff Family Court, Re Child A and B [2024] EWFC 284 in which she set out some practice points on the way in which the Pathfinder process should be applied.
Shortly after reading the A and B judgment, I attended a final hearing listed for three hours before HHJ Scannell. I could see from the case number that it had started before the pilot came in. However, the judge took an interesting approach by calling in the parties a few minutes early to explain the Pathfinder principles and say that these could be adapted to non-Pathfinder cases. She emphasised how long this family had been embroiled in court proceedings and that court was really the last place they should be. She read out short extracts from the Cafcass Cymru report about the impact on the children, especially that the older child was aware of conflict between the parents and how both children need permission to talk to each parent about the other. The report indicated that the younger child said she wanted to spend time with both parents but the older child was worried about saying what she wanted to the family court adviser (FCA).
Basically, the children’s father wanted more time with them (as explained below). The judge said she had not seen any evidence (in the documents) that she should curtail the children’s time with him. On that basis, she wanted the parties to then and there discuss a way they could get to the middle ground and to consider a shared live-with arrangement. However, she could only give them a limited amount of time because she wasn’t going to adjourn to a future date. If they didn’t agree, she would make a decision that day. She wanted them to be able to agree arrangements, so that they could tell the children that there was agreement between them. This was when she asked the parents to think about why they would want to give her the power to make those decisions.
Later in the hearing, the judge explained that the court had been reviewing cases that were going on for a long time at magistrates level and referring some to a judge to see if they could be more speedily resolved. This was one of those cases, having begun a year ago, with a hearing in June 2024 producing an interim decision.
Attending as a legal blogger
I didn’t know anything about this case but saw it listed the evening before and notified the court that I planned to attend. The judge briefly explained to the parties that Cardiff is a Reporting Pilot court and that I could report on the hearing. She asked if there were any objections but added that there would have to be a really good reason for her to decide I couldn’t report. As there’d been so little notice of my attendance, it took a few minutes for each parent to confirm they had no objection. The father had a barrister and a solicitor to advise him and the mother had a McKenzie friend. There was also a qualified legal representative (QLR) present to cross examine the father, because the magistrates had decided it wouldn’t be right for the mother to have to cross examine him. However, in the event, only the Cafcass officer gave evidence, so the QLR left part way through the hearing. We have written about the role of a QLR here.
The judge asked the father’s barrister to email me the case summary he had prepared, which I was able to read while the negotiations were ongoing.
It’s a little uncomfortable to have to turn up just as the hearing starts and delay matters while the parties find about why you’re there, talk to their lawyers (if they have any) and the judge organises the issuing of a Transparency Order. Unfortunately, because the court lists go up so late, that’s usually the situation, but judges in Cardiff seem to have normalised reporters’ attendance as part of their ordinary conduct of relevant hearings.
Background to this case
The separated mother and father have two primary school aged children. In 2021, a child arrangements order had been made that the children live with their mother and spend time with their father, including overnight stays with him and equal time in school holidays. However, this broke down about two years later when the mother stopped the overnight contact. The father applied in October 2023 to vary the order to restore overnight stays and make other arrangements more defined.
In what I thought was quite an unusual arrangement, the father collects the children from school every afternoon and takes them to their mother in the early evening, as this fits her work pattern. So it’s not that he doesn’t see them regularly but that he doesn’t have the sort of quality parenting time he said he wanted. The afternoons were largely taken up with him helping them with the school homework. However, the mother said that one of the children just didn’t want to go to the ‘sleepovers’, as she called overnight stays. This was the sticking point – holiday times could be agreed but the mother didn’t agree to more overnight stays than those that had been ordered on an interim basis in June.
Delay in this case
The judge was notably concerned about how long this litigation was taking and cited the Children Act 1989 principle that delay is not in children’s welfare. There had been a FHDRA in early 2024 which didn’t resolve the dispute and then there were directions issued for Cafcass Cymru to file a report by June. For unexplained reasons this didn’t happen, but at a hearing in June, the magistrates made an interim order that included a fairly short fortnightly overnight stay by the children with their father at weekends. There was eventually a Cafcass Cymru report in September when the matter was listed for a final hearing before HHJ Scanlan in October.
So these proceedings – on how and when PR for two young children is exercised and shared – have taken more than a year for the court to resolve. There were no complex legal issues and no safeguarding issues raised.
The Cafcass Cymru recommendations
The Cafcass Cymru officer (the FCA) had met both children with each of their parents and at school. She had no concerns about her observations of parental care but did have a concern because the older child would not express a view about spending time with their father. The FCA recommended:
1. Live with order in favour of Mother
2. Spend time with Father:
– Alternate weekends: Friday (School) until Saturday 2PM
– All other days continue from School until 6:30PM/7PM
3. Children’s health needs be met and parties to update one another
4. School holidays to be shared equally between the parties
5 Any additional contact agreed between the parties.
However, it transpired that the FCA had believed that a section 8 shared care or ‘live with both parents’ order was only possible if parents had a 50:50 split time arrangement. The judge checked with the FCA that her recommendations had been based on this misunderstanding, and then the FCA said that a shared care order would be in the children’s best interests. The father wanted to go back to a situation where he had more time with the children and was recognised as a joint carer, although he wasn’t expecting strictly equal time. The father’s barrister cited a list of case law authority for shared live-with orders being normally in children’s welfare, most recently AZ v BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam) which we wrote about here.
I found this pretty worrying – that a Cafcass report could be based on a fundamental misunderstanding of the law on parental responsibility and live-with child arrangements orders.
The father’s barrister took the FCA through her recommendations, confirming that the children would benefit from a gradual build-up of more time with their father over the next few months into a regular pattern. The mother asked the FCA how she knew what the older child wanted because that child barely spoke to her; the FCA said she had to factor in the older child being circumspect because of her awareness of the parents’ poor relationship. She said that both children needed to be supported in their relationships with both parents. It seemed that the younger child had spoken to the FCA freely and had said she’d like to go away with their father on holiday, but the older child had just clammed up when asked anything about her family.
Before the FCA left, the judge asked her if it would be a good idea for her to write to the children to explain her order. The FCA agreed and arrangements for that were briefly discussed. I guess by this point, the judge had given up on any hope the parents would present an agreed version of the new arrangements.
I can understand why the FCA didn’t press the reluctant child. However, the mother didn’t give any reasons either. She just said that the child said she didn’t want to go, but she didn’t say anything about why that might be, apart from the father favouring the other child. (The FCA had seen no evidence of this.) The only other reference the mother made to any adverse experiences was saying that the older child had suffered at one time with stress-related eczema.
Special measures
One puzzling aspect of this hearing was that the mother and her Mckenzie Friend sat screened off from everyone except the judge and the QLR, which meant she’d at some stage asked for and been given special measures to help her give her evidence. However, there was no suggestion that she was a victim of abuse and she didn’t have a lawyer. She may have been eligible for legal aid if she’d applied as a victim or complainant of abuse (and had a low enough income). Neither the mother nor the Cafcass officer raised any safety issues about the father. The judge stated in her judgment that this was not a case where PD12J needed to be followed, but she didn’t say anything about the special measures. In fact, the mother didn’t need to give evidence, although she cross examined the FCA and made her own submissions (arguments) very clearly and concisely.
I can only assume that the mother had at an earlier hearing told the court she would be intimidated by seeing and being watched by the father to the extent that she wouldn’t give her best evidence, so the screen had been put in place. However, it seemed odd to hear the judge so actively encouraging parents to behave positively about each other in a court room where the mother had to be physically shielded from the father.
Conclusion
The judge varied the 2021 child arrangements order by substituting a shared lives-with order for the previous lives-with order that had been made in respect of the mother. Time to be spent with the father was specified. The hearing went on well into the lunch hour because all the dates for the staged increase in contact, half terms and holidays were gone through. Although the judge at one point said ‘This isn’t about the maths’ she clearly didn’t want to leave any room for doubt. The judge concluded that the father was capable of meeting the children’s needs during extensive contact which would benefit the children. The only problem would be if their parents still find it difficult to support arrangements. She concluded the increase the father sought was appropriate. The FCA had identified that the children would suffer emotional harm if they didn’t develop a relationship with their father and he continued to feel he was marginalised and treated as a baby sitter.
One of the objectives of the Pathfinder must be to avoid this sort of micro-management of a family’s time, and I could see why the judge was initially hopeful she could persuade the parents to come to an agreement. There was the occasional reference by the FCA and the father’s barrister to the relationship between the parents being acrimonious. Perhaps I would have seen evidence of that if I’d been to previous hearings but neither the barrister nor the mother (self representing) made any particular allegations about each other, other than the father saying the mother was being obstructive and the mother saying one of the children would be unhappy about more overnight contact with him. There didn’t even seem to be any complicating factors about extended family or new partners.
As HHJ Scannell said in Child A and B:
“[the Child Impact Report] encompasses a broad child focused analysis the contents of which allow the court to properly address each element of the welfare checklist when reaching a conclusion. In the majority of cases before the Pathfinder court it is the only welfare report that the court will have. The investigative nature of the Pathfinder approach and the move to focus on the child’s voice and experience does not undermine the content of the report or make it less useful. One of the aims of Pathfinder is greater upfront investigation and information provided through a CIR and the template for the report has been constructed to ensure the child is at the centre of decision making.”
She went on in that judgment to say that parties can expect the same degree of analysis from a CIR that would be available via a s7 report.
The President of the Family Division holds out great hopes for the Pathfinder and I’ve spoken to a few Cafcass officers about it who are also positive. I didn’t have a chance to speak to the FCA in this hearing, as she was busy with the negotiations during breaks. Under the pilot, Cafcass meet the children much earlier in the process to write the Child Impact Report and therefore parents have an opportunity to come to terms with what the outcome of full court proceedings is likely to be. It’s possible that if this had been a pilot case with a Child Impact Report, it would have taken up less court time and, most importantly, spared the children – and the parents – a year of uncertainty.
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