HOW INDEPENDENT ARE THE SOCIAL WORKERS, EMPLOYED BY CAFCASS TO WRITE REPORTS FOR THE FAMILY COURTS IN PARENTAL ALIENATION CASES?
In reading this, most will think, why is this relevant to me? Please bear with us as we take you on a short stroll through the relationship between CAFCASS and their social workers that appear in the family courts. At a time when CAFCASS are making lots of public statements regarding Parental Alienation it is essential that people have all the information they need to formulate sound conclusions.
The short answer to the question in the heading is probably, “ a lot more than you imagine or would even feel comfortable with”. I shall explain why this is and in this first of a series of articles, which revolve around Cafcass and their practice, I will begin to explain why NAAP and most PA practitioners are vehemently opposed to the introduction of the ‘High Conflict Pathway’ which Cafcass plan to introduce in cases they deal with that feature parental alienation. Cafcass in England fall under the auspices of the Ministry of Justice and Cafcass (Cymru) are part of the Welsh assembly government. They are entirely separate entities with separate websites, separate CEO’s and separate seats on the Family Justice Board. Cafcass (Cymru) will be the subject of separate articles.
When Anthony Douglas, the CEO of Cafcass, told us that parental alienation was a ‘form of emotional abuse,’ that all his officers were ‘highly trained’ and that they would undergo further ‘mandatory training’ in parental alienation, ( or something like it, which Cafcass uniquely christened ‘the high conflict pathway’) the words radiated a sort of nice warm feeling. Anthony Douglas had previously gone a few steps further by stating that, ‘PA should be dealt with like any other form of neglect or child abuse’ and he added, “I think the way you treat children after a relationship has broken up is just as powerful a public health issue as smoking or drinking.” Like most people I wanted to believe that Anthony Douglas had undergone a Damascene conversion. I know how painful alienation is and how wretched it felt to discover that some hope I was given at various times was false. So, I had to pinch myself in order to keep in touch with my critical faculties.
A year later, at the Fnf parental alienation conference, the surface gloss was removed in a single wipe when Douglas was challenged from the floor, by Rob Harrison, about the numbers of his workers who had actually taken up online training in PA and emotional abuse. Cafcass’s own data, obtained via FOI inquiries, revealed that the knowledge and competence levels surrounding Cafcass practice in PA were in fact dismally low and exceptionally poor. Nonetheless, some people were so carried away by Douglas’s sudden commitment – to acknowledge something which the courts had actually been acknowledging for nearly 35 years – that they burst into spontaneous applause to praise the ‘courage of the man’.
2.0 The Problem
In most organisations a commitment to ‘mandatory training’ could be regarded as a positive step. Unfortunately, as anyone who has looked beneath the surface gloss of cafcass will inform you, and the statutes, case law and relevant rules also inform us, the foundation coats are virtually non-existent and Cafcass simply isn’t anything like most other organisations. I’ll explain why Douglas’s commitments amount to empty promises. All emphasis has been added by us.
2.1 Firstly, the authoritative and respected Family law text, ‘Bromley’s’, at page 456 tells us:
‘It should be appreciated that both a children and family Reporter and a local authority officer have an independent role, being neither the child’s representative nor a witness for either Party.’ As the following paragraphs explain, the independence of Cafcass officers does not stop here.
2.2 Secondly, this view was reinforced by Thorpe LJ in Re M (Disclosure: Children and family reporter)  EWCA Civ 1199  2 FLR 893 at para 26. He stated that they (children and family reporters) :
‘…act independently and exercise independent discretion as to the nature and extent of his investigations and enquiries and no less in the manner in which he approaches them… It is through the Children and Family Reporter (CFR) that the judge most evidently executes that part of his function which is inquisitorial. The CFR in turn depends upon the judge to give due weight in the scales of justice to the outcome of his investigations. Both judge and CFR are united sharing the same ultimate objective, namely, the protection of children and the advancement of their welfare. In pursuit of that overriding objective each must be free to operate independently as well as collaboratively and independent operation includes the exercise of an independent discretion.’
2.3 Thirdly, so much for CFR’s but, what about Guardians? Well, this matter was explored by the National Association of Guardians ad Litem (NAGALRO) in the Family Law Weekly.
In K and Ors  EWHC 1672 (Fam), Sir Nicholas Wall, who was then President of the Family Division, emphasised the independent status of the children’s guardian. Adopting the argument put forward by the National Association of Guardians ad Litem (NAGALRO), he reminded Cafcass that only the court could appoint children’s guardians, or remove them from a case. Neither should Cafcass substitute a corporate or managerial view for the court-appointed children’s guardian’s view of what will be in the best interest of the child.
In the case of any such disagreement, Cafcass should apply to intervene and explain to the court the reasons for any dispute, for the court to adjudicate.
In a clear and robust judgment Sir Nicholas stated:
“I yield to no-one in my view that the guardian’s independence needs to be cherished.”
He re-iterated how important it is for children that guardians exercise independent judgement when working with solicitors in the ‘tandem model’.
Sir Nicholas’s judgment specifically states that guidance should NOT inhibit a children’s guardian from investigating issues that he or she sees as necessary to safeguard the welfare of children. There is also a corollary of this argument because it is does not necessarily compel a children’s guardian to expand their inquiries into areas they perceive as insignificant either. In reality judgment and discretion operate on a two way street. Referring to the agreement then in place between the President and the CEO of Cafcass (Anthony Douglas), Sir Nicholas stated that nothing in the agreement “fetters the responsibility of the children’s guardian independently to represent the interests of the child in accordance with the statute and rules.”
Furthermore, in R & Ors v Cafcass  EWCA Civ 853, the Court of Appeal (made up of Lord Judge CJ, the Lord Chief Justice of England and Wales, and Richards and McFarlane LJJ) made the following observations (per McFarlane LJ):
“ In surveying the statutory context under the CA 1989, the Divisional Court [at first instance] made the following observations at para . The parties before us effectively endorse these observations and we have accepted them as being an appropriate and highly relevant summary of the importance of the issues raised in this appeal:
‘No detailed analysis of this statutory regime is necessary. The provisions speak for themselves. All we need say is that the children’s guardian is on any view pivotal to the whole scheme. The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian. In a jurisdiction where the State is seeking to intervene – often very drastically – in family life, the legislature has appropriately recognised that determination of the child’s best interests cannot be guaranteed if the proceedings involve no more than an adversarial dispute between the local authority and the parents. Parliament has recognised that in this very delicate and difficult area the proper protection and furthering of the child’s best interests require the child to be represented both by his own solicitor and by a guardian, each bringing to bear their necessary and distinctive professional expertise.
 Before this court, neither party has sought to argue that the description of the children’s guardian as ‘pivotal to the whole system’ was in any manner overstated.’
2.4 Fourthly, most of the Cafcass work force is comprised of social workers who must be registered in order to practice. The registration body is ‘The Healthcare Professions Council and their professional standards are contained in their ‘Standards of Performance, Conduct and Ethics’.
Section 3 implores registrants to, ‘Work within the limits of your knowledge and skills’ and ‘Keep within your scope of practice’.
Registrants are also advised that they:
‘3.1 … must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.
3.2 …must refer a service user to another practitioner if the care, treatment or other services they need are beyond your scope of practice.’
I mention this here because there is clearly already considerable tension between the demands placed upon Cafcass employees to toe the professional line whilst acceding to the functional demands of their employers and the courts. We will be referring to these rules later since they are also highly relevant in view of the frequent reports we are receiving at NAAP that Cafcass officers are commonly reporting and making recommendations to courts on matters that are outside their training, expertise and competence. Furthermore, they would also appear to be confused at where the boundaries lie between their own role and the judicial role. In some cases it would appear that the rule of law is being threatened and might even be under siege since Cafcass are apparently usurping judicial functions such as fact finding.
These points are VERY IMPORTANT for anyone embarking on the journey through the family courts and encountering Cafcass for the first time. They should also be bourn in mind by anyone placing their faith in any organisations that are trying to appease Cafcass. We need to digest and understand that, at the same time as making undertakings that gave everyone a nice warm feeling, Douglas was simultaneously aware that training his officers is a virtually worthless enterprise because he has an over riding duty to respect their independence and he cannot compel them or influence them to say or do anything they do not actually agree with or feel unable to justify ideologically. If he wishes to impose a corporate line or ideology then, if this does not accord with an officer’s views, it would be necessary for the courts to hear from both the officer and a manager in order to adjudicate between the two.
An example of how this problem manifests itself in practice was graphically illustrated at the Fnf PA conference when Anthony Douglas was taking questions from the floor. One of the questioners related to Douglas how he had been told by a Cafcass officer that, ‘…Parental Alienation does not exist.’ At NAAP we have also learned that this ‘mindset’ is not uncommon despite at least 14 years of jurisprudence proving the contrary. We will shortly be publishing a caselaw guide for the benefit of NAAP members.
Under the circumstances it would seem clear that a court user needs to ascertain whether:
the allocated Family Court Reporter accepts judicial findings and respects the authority of the court;
has received appropriate training; and most importantly,
supports his CEO’s views regarding the emotional harmfulness of PA.
A worker that subscribes unquestioningly to Cafcass’s ‘High conflict pathway’ may also be providing stark proof of their inability to appreciate the significance of evidence informed practice and should also be replaced.
Therefore, when Douglas spoke of a ‘mindset problem’ within his ranks he was actually being quite candid and forthright, but, he was also omitting to mention that he had been complicit in the agreements with the judiciary that had promoted it. He would also have known that, although he could make training mandatory, its implementation would actually remain optional. Such is the autonomy that individual officers possess.
We should not forget that it is over 14 years since Wall J (as he was then) declared that parental alienation was ‘…a well recognised phenomenon’. The obvious question is that if Cafcass social workers remain in a ‘mindset’ of antipathy regarding a judicial acknowledgement of the existence of alienation for over 14 years after event, and after numerous reminders in the interim, is there any real hope of an about turn amongst the doubters any time soon?
Unless these matters are ironed out then it is rather too early to start cracking open the champagne bottles because it will be business as usual at least until Douglas gets his golden handshake.
The fact that so many people are so terribly desperate for change that they are willing to be marched like proverbial lemmings over the cliff edge removes any pleasant warm feelings in an instant and sends shivers down my spine. It is a chilling fact that so many who have suffered from Parental Alienation have not learned from the experience and seem determined to keep doing the same things whilst hoping for different outcomes.
There is another strand to this which bothers me a great deal. Having been an alienated parent I know only too well how vulnerable I was at the time and especially how wretched, helpless and desperate I was after reading the first welfare report. It is absolutely wrong and reprehensible to lead already damaged and vulnerable people up the garden path: regardless of the excuse or justification.
Copyright © 2018 by Peter A Davies LLB, Director NAAP
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