Cafcass, evidence, and witnesses

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Estimated reading time: 15 min

Background

If you are accused of a crime you have a right to have a solicitor present during any interview. If you’re subsequently charged with a crime you have a right to see all evidence against you (theoretically at least – check the media for the recent spate of non-disclosure acquittals) . And you have a right to challenge this at court and be judged by a jury of your peers.

Any witnesses are interviewed properly and independently, away from you or any other witnesses to ensure that their evidence is given openly and without influencing other witnesses, and of course to ensure that any statement they give is not swayed by being made to give it in front of any 3rd party that maybe be affected by their evidence. Witness statements are recorded and full details of the witness and the basis for their evidence or statement is recorded alongside the statement.

Cafcass approach

So in a case involving Cafcass it would be pertinent to ask what provision Cafcass make when they are interviewing parties to a case or witnesses to a case. We are specifically concerned with how and when they interview either parent, and especially interested in how and when they interview the children involved.

Cafcass were asked:

Can you advise what your policy if any is on having a witness of my choosing with me whilst being interviewed by yourselves under instruction from the Court.

Cafcass responded to say:

We do not have a written policy. The answer to your query would generally be that it would depend on the circumstances of the case. The Cafcass Officer has a degree of discretion to how they undertake their enquiries.

You may approach the Cafcass Officer to discuss your wishes and needs directly. The scope of the enquiries instructed by the Cafcass Officer is determined by the Family Proceeding Rules and by the direction of the court. If there is a dispute about the extent of these enquiries it will be settled by the court.

Cafcass were asked:

Is a parent allowed to record the interview of his/her child by a CAFCASS employee?

Cafcass responded:

Cafcass has no specific policy on this issue. It is a matter which should be discussed between the relevant service user and the practitioner. It is usually discouraged and should not happen without letting the practitioner know in advance. The practitioner will make a written record of the meeting and relevant information will be set out within the court report.

PACE and routine recording

As Peter Davies from NAAP says in his excellent article about PACE:

PACE and routine recording of criminal proceedings was introduced 34 years ago. Why is the routine recording of interviews and proceedings STILL resisted by the family courts?

In their 2017 update to their Operating Framework Cafcass have this to say:

“2.31 We should have nothing to fear from covert recording. Our attitude should be, “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge.”

As intentions go there is not much to disagree with in these statements. But if you have direct or even indirect experience of the family courts you will know that these sentiments are highly aspirational and seldom, if ever, borne out by anyone’s experience.

Cafcass and interviews of children

But Cafcass are here only discussing the recording of interviews between a parent and Cafcass. When it comes to recording and monitoring what Cafcass say and do with children, and to identify any Cafcass manipulation of children in a case… well as you saw from the first FOI response, Cafcass say you should discuss it with the individual Cafcass practitioner and it is allowable at their discretion, but that it is “usually discouraged“.

In July 2017 Emma Lewell-Buck, the Shadow Minister (Education) (Children and Families) asked the Secretary of State for Justice:

what guidance his Department has issued to the Children and Family Court Advisory and Support Service on interviewing children in family court cases?

Dominic Raab replied in a written answer to say:

The Ministry of Justice has not provided any such guidance to the Children and Family Court Advisory and Support Service (Cafcass).

Cafcass has produced guidance to its social work practitioners on this as part of its Operating Framework on which it is currently consulting.

And here’s what Cafcass have to say in that Operating Framework (Page 15, section 2.19):

Children as witnesses
2.19 The principles applied in criminal cases are just as relevant for family courts, even though it is rare for children to give evidence directly. Here are the main points to bear in mind:

  • Ensure that advocates follow the advocate’s gateway and avoid long, multi-part questioning, leading questions and tag questions. Where children are being interviewed or cross-examined, questions should be simply put and expressed, however complex the issues.
  • The ground rules for interviewing children should be set early on with the court, including about questioning approaches and about how best to facilitate the child’s free narrative account.
  • Cross-examination can be hostile, such as when a case might turn on what the child says. Consider the impact of the child being accused of lying; such cross examination must be restricted to that which is necessary to safeguard justice for the adults concerned.
  • Children can become selectively mute in court because of questioning or they can become disoriented, even if special measures are put in place. It is crucial that children giving evidence are prepared, supported and facilitated, to help to ensure their evidence is accurate and robust and so that any negative impact of the court experience can be minimised.

Interviewing witnesses infront of potential abusers

So why is it that children are still being interviewed in front of the Resident Parent, in the Resident Parent’s home, and made to complete documents in this environment that are then used to support the wishes and feelings portion of the Cafcass report in support of the Resident Parent – most especially in cases involving Parental Alienation (or High Conflict as Cafcass now wish to term it)?

Documents that Cafcass ask children to complete

Have you seen these documents that Cafcass ask the children to complete in the Resident Parent’s home? Here they are:

Cafcass and children’s Letters to Judges

Cafcass were asked:

In your Operating Framework you say “Practitioners help children to write letters to judges or magistrates, as well as seeing them, when children wish to.”

In your ‘Handbook for Practitioners on using My Needs, Wishes and Feelings’ you say “Children and young people have a right not to participate in difficult decisions that affect their lives”

On your website you have 2 forms which you signpost as “10. What I want to say for younger children” and “11. What I want to say for older children”. These forms are almost identical copies and formats of each other and are both titled “What do I want to say. My letter to the Judge”.

You also provide 2 further forms for older and younger children entitled “1. My Needs, Wishes and Feelings summary for older/younger children”.

At the foot of these 2 forms you have some brief text that says:
“I have shared the report incorporating My Needs,Wishes and Feelings with the young person. The young person understands the content of My Needs,Wishes and Feelings and agrees to it being filed with the court.”

Please would you now provide or confirm:

1. What training is available to Practitioners on when to ask children to write a letter to the judge?

2. How many cases involving a s7 report in 2016 were there that included a Letter to the Judge completed by one or more of the children within those cases? If you cannot answer this due to the amount of cases please confirm whether or not it is the norm that all children are required to write a Letter to the Judge.

3. Please provide a copy of your internal guidance and/or training on when and whether children are required by your Practitioners to write a letter to the Judge

4. Please provide a copy of your internal guidance and/or training on using these needs, wishes and feelings tools and resources in cases where Parental Alienation/Implacable Hostility has been identified either by the Practitioner or by a party to the case.

5. Please provide a copy of your internal guidance and/or training that relates to identifying when “Children and young people have a right not to participate in difficult decisions that affect their lives”

Cafcass responded:

1. What training is available to Practitioners on when to ask children to write a letter to the judge?

Cafcass provides induction training events within a practitioner’s first year, which include Casework, Risk and Harm, and Interviewing and Communication Skills. These teach our Family Court Advisers how to use the correct tools (such as My Needs, Wishes and Feelings tools, which includes a child’s letter to the judge) and skills with both parents and children to ensure they focus on all the relevant issues (including the impact of the proceedings on the child within the context of their age and stage of development) in order to achieve the best possible outcome for the children involved.

Cafcass also has a handbook for practitioners My Needs, Wishes and Feelings: Guidance for practitioners which provide guidance on how to use the tools with children and young people. Our website also provides some brief guidance for practitioners on how to use the tools: ‘Use these tools to facilitate direct work with children and young people. Use these tools as required to gather information during interviews with children and young people or post interview to analyse the evidence and inform recommendations’. Cafcass has a Private Law Assessment Tools eLearning module on Private Law Assessment Tools, which includes guidance on the use of My Needs, Wishes and Feelings tools. Competent use of tools is covered by supervision processes and the manager quality assurance check of every report that is filed to court.

The use of the My Needs, Wishes and Feelings tools is a matter for the practitioner’s professional judgement. The tools help inform practitioner’s analysis and recommendations to the court and can help a child or young person share their feelings directly with the court.

2. How many cases involving a s7 report in 2016 were there that included a Letter to the Judge completed by one or more of the children within those cases? If you cannot answer this due to the amount of cases please confirm whether or not it is the norm that all children are required to write a Letter to the Judge.

In the year 2016-17, a total of 726 cases were flagged as having a ‘Letter to the Judge’ and a S7 report filed on them. This data has been taken taken from the Cafcass national database ECMS; this is a live system which is subject to continual updates and change. As with any large scale recording system, these figures are subject to possible errors with data entry and processing.

There is no ‘norm’ in regards to whether a child will write a letter to the judge and it is not a requirement that all children must write a letter to the judge. The use of the My Needs, Wishes and Feelings tools, including child’s letter to the judge template, is a matter for the practitioner’s professional judgement. The tools help inform practitioner’s analysis and recommendations to the court and can help a child or young person share their feelings directly with the court.

The Cafcass Operating Framework sections 1.16 – 1.22 sets out how Cafcass works with children and young people.

3. Please provide a copy of your internal guidance and/or training on when and whether children are required by your Practitioners to write a letter to the Judge

Please see the answer to question one.

4. Please provide a copy of your internal guidance and/or training on using these needs, wishes and feelings tools and resources in cases where Parental Alienation/Implacable Hostility has been identified either by the Practitioner or by a party to the case.

Cafcass provides induction training events within a practitioner’s first year, which include Casework, Risk and Harm, and Interviewing and Communication Skills. These teach our practitioners how to use the correct tools (such as My Needs, Wishes and Feelings tools) and skills with both parents and children to ensure they focus on all the relevant issues (including the impact of the proceedings on the child within the context of their age and stage of development) in order to achieve the best possible outcome for the children involved.

Cafcass understands and recognises the potential for implacable hostility by a party and the potential for the ‘alienation’ of a child from one parent in high conflict private law cases. Section 4.19 of the Cafcass Operating Framework makes reference to “implacable hostility” which may lead to “alienation” of a child from one parent, and sets out how we assess such issues in our cases.

We encourage staff to use the ‘Impact of Parental Conflict Tool’ in their direct work with children, where this is relevant and where the FCA consider its use is appropriate to the needs of the case. The use of this tool is a matter for the practitioner’s professional judgement. If its use is deemed appropriate by the practitioner, as explained on our website, it is suggested to be used post-interview to analyse the impact of parental conflict and the level of parental influence on a child’s wishes and feelings. It is designed to help identify and clarify any emotionally harmful influence of one or both parents on the child.

When using the tool, practitioners should refer to the tool and the analysis in the relevant section of the section 7 report.

5. Please provide a copy of your internal guidance and/or training that relates to identifying when “Children and young people have a right not to participate in difficult decisions that affect their lives”

As stated in our Operating Framework, ‘a key part of our work is to enable the appropriate involvement of children in the court proceedings that are about them. Subject to their age and level of understanding, this involves ensuring that children are aware of the proceedings and have the opportunity to participate in them or otherwise contribute to them (United Nations Convention on the Rights of the Child, Article 12).’ Positively engaging children in their own cases can lead to higher levels of self-esteem and self confidence, which promotes resilience when growing up with continuing emotional or psychological conflict (UNCRC, Article 12).

The role of Cafcass is to safeguard and promote the welfare of children, taking account of their ascertainable wishes and feelings.

My Needs, Wishes and Feelings tools, can help a young person share their feelings directly with the court, if they wish to do so. As stated in the My Needs, Wishes and Feelings: Guidance for practitioners, ‘it is our duty to provide opportunities for children to communicate in a way they feel at ease with. Practitioners should encourage the use of My Needs, Wishes and Feelings, but it is important that children are not coerced into using it.’

It is the court, and not Cafcass, the parties or children and young people, that makes the final decisions in the family court proceedings.

There are some interesting points in here, one of which is of course Cafcass avoided answering the question about the children’s right NOT to be involved in a court case.

Cafcass were asked to confirm this:

Please provide a copy of your internal guidance and/or training that relates to identifying when “Children and young people have a right not to participate in difficult decisions that affect their lives”

You have provided a response around wishes and feelings and giving children opportunities to be involved. Your answer relates purely to the rights of children TO BE involved.

You have not provided a response to my question which was specifically targeted at your policies/guidance/training on the rights of children NOT to participate. It may be that you do not provide any guidance/training on the rights of children NOT to participate.

Could you confirm whether you provide this guidance/training and of so please could you provide copies of it?

Cafcass responded:

Cafcass does not have specific training or guidance in relation to identifying when “Children and young people have a right not to participate in difficult decisions that affect their lives”.

Having read all of this you should probably take a look at the following items which are referenced by Cafcass in their response.

Cafcass Training

They say their FCAs are trained. Here’s the evidence that they’re not:

Cafcass say that they have credible tools. Here’s the evidence that they don’t:

Emperor’s new clothes

Cafcass rely on a couple of things to protect them from scrutiny and accountability:

Cafcass say that their FCAs are “qualified, experienced, and trained”.

Cafcass say that Cafcass as an organisation cannot be held to account for any irregularities within a Cafcass report as “the report is the professional opinion of the individual Cafcass FCA”.

Cafcass say you “cannot complain about the contents of a Cafcass report as this should be dealt with at court”.

Cafcass say that “It is the court, and not Cafcass, the parties or children and young people, that makes the final decisions in the family court proceedings”

Cafcass High Conflict Pathway

In response to being caught out over their training, their qualifications, and their knowledge of the law, Cafcass’ Chief Executive Anthony Douglas responded in October 2017 by saying that Cafcass were due to launch a new Pathway document, accompanied by robust training, which he termed the High Conflict Pathway. You can read more about this here:

Updated (again): Cafcass, Douglas, and the High Conflict Pathway

Cafcass failed to mention that portions of that High Conflict Pathway and training were already being used in the field on live cases and Anthony Douglas insisted that it was a work in progress to be published in Spring 2018 after wide consultation with “experts”.

We discovered that it has been used in the field with live cases from late 2016.

Here’s the document and training:

Cafcass have denied that this training and handbook forms the core of the High Conflict Pathway. But on their own website they say:

The HCPP was developed by an advisory group from Cafcass England, comprised of approximately 40 of our practitioners from across the country and led by Sarah Parsons, Assistant Director and Principal Social Worker for Cafcass.

From 1st November 2017, practitioners from the internal advisory group have been using the ideas from the pathway as part of its ongoing development. They have not been using the proposed new assessment tools. These will not be in use until after external stakeholders have had the opportunity to feed in their views and after the full training programme that will accompany the formal launch of the pathway.

This early use will not only assist assessment of the impact of parental conflict in these cases but will also help identify any improvements that can be made to the pathway.

Despite saying that consultations were going to take place with experts, Cafcass then denied this and said that instead they would “contact a range of stakeholders”.

Our researchers asked for a list but they said they didn’t have one:

Cafcass said:

As the pathway is a Cafcass tool there will not be a formal consultation on the pathway. Cafcass are planning to contact a range of stakeholders, such as the judiciary, lawyers, academics, therapists, and men’s and women’s groups to set out clear information about the process for obtaining feedback. However no groups or external parties have been contacted yet in regards to their views on the pathway.

We also asked if they had produced a consultation pack…

Cafcass responded:

Cafcass has not produced a consultation pack for the High Conflict Pathway as Cafcass is not having a formal consultation on the pathway.

This week we have seen evidence that Cafcass have now “contacted a range of stakeholders” and have invited them them to attend meetings on different days according to the group they have been assigned by Cafcass:

Copy of email invite from Sarah Parsons at Cafcass [REDACTED]

I have been leading on the development of the High Conflict Practice Pathway, which is a new framework that will help our practitioners assess cases, which feature adult behaviours associated with post-separation child arrangement difficulties. Information about what we’ve been working on can be found here.

We recognise the importance of transparency in our work and while we develop our practice tools for our own staff, we are aware they are often adapted and used by professionals in other organisations.

Although this is an internal document and we are not therefore conducting a formal consultation, we would like to discuss the pathway with you and other interested parties before it is finalised. I would like to invite you to the [REDACTED] discussion group on the pathway, details of which are set out below.

Date: [REDACTED]
Time: [REDACTED]
Location: [REDACTED]

There are many reasons why we’re so concerned about this new Pathway:

  • Cafcass say “The model we’re using is inspired by our Domestic Abuse Practice Pathway, introduced to support and strengthen the systematic assessment of cases involving domestic abuse or domestic abuse allegations.” and we already know that their DAPP is flawed, authored internally, and contains substantial bias in favour of female resident parents and false allegations.
  • Cafcass seem to misunderstand their role in law, and who makes decisions in family court cases. The superb team at the Transparency Project make the point far better than many on this subject.
  • We know from the evidence gathering mechanisms highlighted earlier in this article, along with Cafcass inability to exercise proper due diligence when interviewing parties and witnesses that they are unlikely to be able to any of this successfully in any new pathway.
  • We now have anecdotal evidence from a number of parties in current live cases where both the High Conflict Pathway is being trialled and where the Cafcass Positive Parenting Programme pilot is being used that these parents and children are still being misled by Cafcass and that the whole thing, right now at least, is still a disaster.
  • and lastly, if the High Conflict Pathway, authored by Cafcass’ own internal “National Improvement Service (NIS) “team is anything like their plans for the shortened Cafcass Child Impact Reports Training then it’ll be another disaster and the children involved have got no chance of a fair resolution.

It all smacks of Cafcass simply rushing to get something, anything, out there to hide behind.

 

 

References:

 

In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.

We speak for the children in Family Law so that, finally, the children have a voice.

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