Thank you for your email dated 8 May addressed to Ed Balls MP expressing your concerns about the Children and Family Courts Advisory Service (Cafcass). I hope you will appreciate that due to the high volume of correspondence the Minister receives he is unable to reply personally to each one. I have been asked to reply.
The Government is well aware that domestic violence is an issue that frequently occurs in contact cases, and our commitment to facilitating contact between children and both parents after separation is tempered by a clear view that contact must be in the best interests of the child and safe for all family members. The Government is aware that in some cases the reason behind a parent’s failure to comply with a contact order will be a fear for their own safety or that of their children. It is a priority of the Government that, where the resident parent has concerns about their own safety or the safety of their children, the family justice system should contain systems that will allow them to feel confident to seek the protection of the court.
The Children Act 1989 requires courts to have the welfare of the child as their paramount consideration when making any decision related to his or her upbringing (known as the ‘paramountcy principle’). The welfare checklist in the Children Act 1989 also specifies that courts must have regard to issues such as the physical, emotional and educational needs of the child and any harm which the child has suffered or is at risk of suffering. This checklist, and the paramountcy principle, will apply when the courts are considering using the new powers under the Children and Adoption Act 2006 to make a contact activity direction or condition.
The court may also request additional information, usually provided by Cafcass, and potentially including police checks and consultation with Social Services. The court may also direct a local authority to investigate the child’s circumstances if it believes that the child may be at such risk of significant harm that a care or supervision order may be necessary. When it makes an order for contact, the court can rule that contact should be supervised or take place indirectly (for example, through telephone calls or letters) if there are fears about safety.
The Children and Adoption Act 2006, places a duty on Cafcass officers to conduct a risk assessment whenever they are involved in private law family proceedings where an officer is given cause to suspect that the child is at risk of harm. The results of that risk assessment will be provided to the court, and will ensure it takes fully informed decisions.
Since Autumn 2007, the Act gives courts the power to require parents to attend contact activities (classes, courses or programmes that will address violent behaviour, and/or improve either parent’s ability to establish, improve or maintain contact). Additionally, the Act gives the courts new powers to ensure that contact orders can be appropriately enforced by the imposition of unpaid work requirements, except where the individual had a reasonable excuse for failing to comply with the contact order. We have made clear that a genuine fear of domestic violence could be a reasonable excuse.
Under the 2006 Act domestic violence perpetrator programmes will constitute a type of contact activity. The Act does not provide an exhaustive list of what such activities can cover, but nonetheless it has always been our expressed intention to include perpetrator programmes where these are appropriate.
It is worth noting that these measures will be additional to a number already in place. In 1999 the Advisory Board on Family Law’s Children Act Sub-Committee produced new Guidelines about how the courts should deal with allegations of domestic violence in contact cases. The Guidelines require the courts to consider at the earliest opportunity allegations of domestic violence and decide whether the nature and effect of the violence is such that it is likely that any order of the court for contact would be affected. They also require the courts to ensure that they are satisfied about the child and resident parent’s safety before, during and after contact.
The courts have introduced an additional form to the applicant’s pack (C1a) which aims to encourage all parties to a contact/residence case speak out about issues of domestic violence, harm and abuse and provide detailed information in support of any allegation. The information provided enables the courts to test, at a very early stage in proceedings, if the allegations are soundly based and a 'finding of fact' hearing is needed.
Furthermore, a clause in the Adoption and Children Act 2002 has clarified the meaning of “harm” in the Children Act. This makes explicit that “harm” will include, for example, impairment suffered from seeing or hearing the ill-treatment of another. Alongside this the courts have introduced an additional range of questions to court application forms which enable applicants and respondents to highlight allegations of domestic violence right at the start of proceedings. This enables the courts to make findings of fact before deciding on contact and residence applications or, under the current Bill, before deciding whether to take any enforcement action if an order is breached.
Cafcass is an independent public body and operates at arm’s length from the Government and it is required to have a fair and transparent complaint procedures in place and any complaint about the services they provide must be dealt with under these procedures.
I would therefore suggest you contact David Moy, Cafcass National Complaints Officer with your concerns. You can write to him at 6 The Mendips, High Street, Taunton TA1 3SX (Telephone: 01823 340 205). CAFCASS treat all complaints seriously and will thoroughly investigate them.
Finally, if you have not already done so, you may find it useful to seek legal advice about the options open to you from a family law solicitor, advice agency or law centre. Community Legal Services Direct (CLSD) can provide advice under the public funding scheme at: www.clsdirect.org.uk
or the CLSD helpline by telephone on 0845 345 4345.