Children and Family Court Advisory and Support Service and family court reform

Background

Cafcass

The Children and Family Court Advisory and Support Service (Cafcass) is a non-departmental public body established by the Criminal Justice and Court Services Act 2000.

Cafcass represents children in family court cases in England and provides information to the court to support safe decisions about arrangements for children. This will usually include:

• Carrying out safeguarding checks with the police and the local authority to find out if there are any known safety or welfare risks to the children.
• Conducting telephone interviews with the parties involved to find out if they have any concerns about the safety and welfare of the children.
• Providing the court with a short report on the outcomes of the safeguarding checks and any raised child welfare issues. This is known as a safeguarding letter.

The court may also ask Cafcass to carry out more detailed work and write a report about a child’s welfare (known as a section 7 report). Further information is available on the Cafcass website at: About Cafcass.

Cafcass does not make decisions regarding contact, residence or care of a child. This is a matter for the court to determine on the basis of the evidence presented, including any information or reports provided by Cafcass.

Further information on the role of Cafcass in child arrangement cases is provided in the Library briefing: Children: child arrangements orders – when agreement cannot be reached on contact and residence (Great Britain).

Ofsted inspection of Cafcass

On 28 February 2023, Ofsted published a letter summarising the findings of a focused visit to Cafcass on 24 and 25 January 2023. The letter noted demand for Cafcass services “remains extremely high as continued backlogs on the family court, resulting from the pandemic, are worked through.” It added that 15,000 children have been in court proceedings for over 52 weeks.

Despite the high demand, Ofsted said, senior leaders have developed strategies “to continue to deliver high-quality services to children, families and the family courts” and Cafcass continues to meet its statutory responsibilities for children.

Ofsted’s other findings included:

• Where domestic abuse is suspected or is a feature of a child’s life, Cafcass staff thoroughly assess the risk and how it impacts on the child’s life. This “results in safe and appropriate recommendations being made to the court.”
• The majority of reports in both public and private law are fair, balanced and proportionate.
• Although “too many children continue to experience delay in their court proceedings being concluded, in most instances this is outside of Cafcass’s control.”
• Challenges relating to pay and workload pressures are impacting on staff retention in some areas.

Family court reform: Ministry of Justice Risk of Harms report

In May 2019, the Government announced it would establish an expert panel (subsequently named the Family Justice Panel), to look at how the family courts protect children and victims in child arrangements cases relating to domestic abuse and other serious offences.

The Panel’s final report was published in June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases. The report raised several concerns, including regarding the “pro-contact culture” in the family courts, and made a number of recommendations.  

The Ministry of Justice published an implementation plan alongside the Panel’s final report. This set out several steps the Government would take to “improve the experience of victims of domestic abuse in the family courts.” This included:

• The Ministry of Justice would design a statement of practice in partnership with key stakeholders and “ensure that this is effectively implemented and drives cultural change across the system as a whole.”
• The Government would review the presumption of parental involvement under the leadership of the Family Justice Board (comprising senior leaders from across the Family Justice System and jointly chaired by Ministry of Justice and Department for Education ministers). The review was originally expected to be completed by the summer of 2021. However, it is now expected to be published at some point in 2023.
• The Government would pilot “integrated domestic abuse courts (IDAC) that address criminal and family matters in parallel”. Pilots in North Wales and Devon started in March 2022: Pioneering approach in family courts to support domestic abuse victims better.
• “A more investigative approach to the family courts” would be piloted with the learning from the IDAC pilots “used to inform wider reform, led by the Family Justice Board.”
• The cross-examination of victims by perpetrators of domestic abuse would be prohibited. This was done through provisions in the Domestic Abuse Act 2021.
• Victims of domestic abuse would be automatically eligible for special measures in the family court. This was achieved through provisions in the Domestic Abuse Act 2021.
• The Government would explore how further clarity could be achieved on the use of barring orders (orders requiring somebody to obtain the leave of the court before applying for a child arrangements order). The Domestic Abuse Act 2021 amended the Children Act 1989 to provide further clarification on the use of barring orders.
• The Ministry of Justice intended to commission a study on the implementation of the current procedures in cases in which allegations of harm are raised.  

Further information on the Risk of Harm report and the Government’s response (up to May 2021) is provided in section 5 of the Library briefing: Children: child arrangements orders – safeguards when domestic abuse issues arise (England and Wales).

A more recent update on progress with implementing the reforms was provided in response to a parliamentary question on 20 December 2022:

Good progress has been made on delivering the commitments taken forward in the Government’s Implementation Plan, with the majority of these measures already in place or in progress.

Changes were brought in as part of the Domestic Abuse Act 2021, including automatic eligibility for special measures in the Family Court, the prohibition of cross examination of victims by perpetrators or alleged perpetrators, and a clarification of the law on the use of section 91(14) orders in domestic abuse circumstances. These measures have all now come into force.

We are currently undertaking a review into the presumption of parental involvement and its risk of harm exception, in private law children's cases. The evidence gathering stage of the review is currently being undertaken and the final report from the review will be published in 2023.

In addition, we are testing reforms to the Child Arrangements Programme and seeking to enhance the voice of the child through the Investigative Approach pilot which has launched in Dorset and North Wales, and through the flexible case management provisions introduced by Practice Direction 36Y.

Work is also being progressed through the Family Procedure Rule Committee on amending Rules and Practice Directions to allow IDVAs [Independent Domestic Violence Advisor] and ISVAs [Independent Sexual Violence Adviser] to accompany parties in the courtroom as a default.

Pilots to improve transparency of family courts

Court hearings relating to family matters are generally held in private, meaning members of the public cannot be present. While accredited media representatives may attend hearings, there are strict limits on what they can report. This has led to concerns about a lack of transparency in the family courts.

As part of a 12-month pilot begun on 30 January 2023, journalists and legal bloggers are able to report from family courts in Cardiff, Leeds and Carlisle, subject to rules of anonymity.

Further information is available in the Library briefing: Reporting in the Family Court.

Parliamentary material

CAFCASS: Working Hours | 13 Mar 2023 | Written questions | Answered | House of Commons | 160349

Family Courts | 08 Mar 2023 | Written questions | Answered | House of Commons | 153996

Family Courts: Mental Health Services | 07 Mar 2023 | Written questions | Tabled | House of Commons | 160433

Family Courts: Standards | 07 Mar 2023 | Written questions | Answered | House of Commons | 153998

Family Courts | 07 Mar 2023 | Written questions | Answered | House of Commons | 153995

Family Courts: Domestic Abuse | 03 Mar 2023 | Written questions | Answered | House of Commons | 153999

Family Justice System Reform | 24 May 2022 | Oral questions | Answered | House of Commons | 715 c151