Cafcass launches Domestic Abuse Practice Policy

On 9 October 2024 Cafcass announced a new Domestic Abuse Practice Policy, which came into effect immediately and applies to all Family Court Advisors (FCAs), Children’s Guardians and managers.

The policy sets out the practical requirements that Cafcass must follow in proceedings where allegations of domestic abuse are raised. The accompanying press release provides the broader context for the policy, referring to the 2020 Harm Panel Report, which made recommendations to protect children and adults in family proceedings.

In the press release, Cafcass explains that it has been using the four years since the publication of the Harm Panel Report to consult expert and specialist external groups in order to improve training and implement the new policy. Every FCA, children’s guardian and manager must confirm that they have read and understood the policy and that they will incorporate it in their practice.

Importantly, Cafcass says that the policy articulates “what must be done” and that Cafcass can be held accountable collectively and individually. If not adhered to, Cafcass can face challenge through complaints, the Parliamentary & Health Services Ombudsman, referral to Social Work England, or a Judicial Review. As practitioners, therefore, we can assume that, from now on, reports from Cafcass will follow this policy wherever domestic abuse is a feature.

We would encourage all practitioners to read the policy in full, but highlights include:

Use of language

Cafcass officers must not dismiss or minimise domestic abuse as “historical” or as a one-off incident (paragraph 8). This is because it demonstrates a lack of understanding of the ongoing long-term trauma of domestic abuse and also perpetuates it. In trauma-informed practice, there is no such thing as “historical abuse”.

Practitioners must not “reinterpret or reword the experience of domestic abuse victims” (paragraph 9). Cafcass officers should use the person’s own words to describe what they say has happened and the impact it has had upon them. For example, when describing a “rape”, it must not be reinterpreted/redescribed as “non-consensual sex” or “unwanted sexual attention”.

The Bureau of Investigative Journalism recently reported on a case where contact was permitted despite a finding of rape. In her report the guardian had described the rape as “unwanted and inappropriate sexual approaches” which were “largely historical”, downplaying the seriousness of the crime. The mother complained to Cafcass, saying that it was her belief the guardian “couldn’t bring herself to write the word ‘rape’ in her report” (See “Cafcass issues new rules to protect abuse victims in family court system”, 16 October 2024). The policy now makes clear that there should be accurate reporting of the victim survivor’s experience in their own words.

There is also a prohibition on the use of the words “claims” or “alleges” when a person reports domestic abuse (paragraph 10) as it is considered to diminish or minimise the experience of the person reporting the abuse. Reports should clearly state “s/he said…” or “s/he told me”. The role of Cafcass is to accurately and clearly set out what has been reported to it and it is the judge’s role to determine any disputed facts.

Furthermore, it must not describe an adult as “anxious” or “suffering from mental health issues” unless the individual has been clinically diagnosed and/or Cafcass has considered whether feelings of anxiety or fear may be a trauma response to abuse (paragraph 11).

Parental alienation

There is separate Cafcass guidance on “alienating behaviours” but, in this domestic abuse policy, the term “parental alienation” (oddly) is used. At paragraph 19 it says that when assessing the reasons why a child might say that they do not want to see a parent, Cafcass must “first consider whether the cause of this refusal is because the child is a victim of domestic abuse and harmful parenting” (emphasis added). We often see counter-allegations of alienating behaviours from one parent where another parent has alleged domestic abuse (what is commonly known as the DARVO technique: deny, attack, reverse victim and offender), although of course allegations of alienating behaviours can also be genuinely made. It can be difficult for Cafcass or the court to deal with counter allegations but it is hoped that requiring Cafcass to first consider the likelihood of domestic abuse as the reason for a child not wanting to see a parent will prioritise the child’s experience and that a proper assessment of domestic abuse will be conducted.

Recommendations around contact

Paragraph 4 makes clear that when an adult describes a sexual offence or other criminal acts of violence (which would include any other domestic abuse that is not sexually motivated) formal child protection action must be taken in the form of a 16A risk assessment report and a referral to the local authority. Cafcass must follow up on its referrals and managers should escalate the concerns if the local authority has decided to take no further action and Cafcass remains concerned that the child is left at risk of harm.

Where there has been any report or disclosure of any form of domestic abuse (including sexual abuse) and a child is living with the accused parent, Cafcass is required to urgently assess the child’s safety and wellbeing. Cafcass will set out in its reports to the court how PD12J has been applied. A Cafcass manager will be involved and consideration will need to be given as to what safeguards can be put in place for the child, which could include a recommendation for a change of residence. A referral to the local authority and escalation to the court via a 16A risk assessment may also be required (paragraph 5).

Where abuse has been reported by an adult or a child, if the Cafcass officer recommends contact with the perpetrator they must provide a “clear, unequivocal, and compelling rationale” in their report as to why they have discounted that domestic abuse as a risk to the child (paragraph 12).

At paragraph 13, the policy provides for an assessment of the cultural context of the family and any implications of culturally influenced beliefs and attitudes about domestic abuse for the child and their arrangements within the analysis. An understanding of culture will be important where, for example, a perpetrator seeks to rely on a cultural reason for their behaviour which they would say is not abusive.

Fact-finding hearings

Where a fact-finding hearing is recommended, consideration must be given to whether it is in the child’s best interests for any current “spending time with” arrangements to be suspended until the fact-finding hearing takes place (paragraph 14). Paragraphs 25 to 27 of PD12J must inform any recommendations, or not, for interim contact pending the determination of disputed facts.

‘Spending time with’ starting points

Paragraph 21 sets out the various starting points where there has been a report, disclosure, investigation or conviction of sexual offences. This paragraph, as drafted, only relates to sexual offences and not where other forms of domestic abuse are reported. This seems to differentiate from the requirements in paragraph 4 (where consideration must be given to a 16A risk assessment and referral to the local authority) where any criminal acts of violence have been reported, including sexual offences.

Paragraph 21 sets out various starting points, depending on where along the justice system the allegation of sexual abuse has travelled:

• If a sexual offence, such as rape, has been reported, the starting point must be to consider the risk of harm and the need for a fact-finding hearing, per paragraphs 25–27 of PD12J and suspension of any pre-existing direct time with the child pending findings
• If a fact-finding hearing is already scheduled, the starting point must be that there should be an evidence-based recommendation for no direct contact
• If there has been a police investigation or a charging decision, the starting point must be a recommendation for no direct contact until the conclusion of the investigation. If it results in no further action, Cafcass still has to consider the starting point in (a) above
• If there has been a conviction, the starting point is that the risk of harm to a child is significant and, in line with paragraphs 35–37 of PD12J, there should be a recommendation of no contact with that parent

Cafcass assessment of the perpetrator

When assessing those who have been domestically abusive, Cafcass must follow the long-established principles set out in Re L, V, M and H [2000] EWCA 194 and incorporated into PD12J. They must assess the lifelong harm caused by any domestic abuse and not recommend that a child spends time with a parent who has inflicted harm on the child and/or their other parent without clear evidence that the perpetrator:

1. recognises the harm that their behaviour has caused to their victim(s)
2. has taken responsibility for the harm they have caused
3. has taken action to show a change in their attitude and that they have endeavoured to stop their harmful behaviour (this will need to be demonstrated over time), and
4. the changes have resulted in the removal of the risk of them perpetrating that behaviour to the point that family time is now recommended as being in the child’s best interests

Any departure from this starting point will again need to be supported by compelling evidence.

So, what next? The policy has only been out for a month so time will tell. It is sincerely hoped by the practitioners in the domestic abuse and children committees (and, no doubt, the general membership of Resolution), that this policy will be widely implemented and embedded within Cafcass’s practices. We also wonder whether this is something that Independent Social Workers will factor into their reports). It will remain to be seen whether the judges will take notice of the various starting points. This is, of course, just guidance for Cafcass; the ultimate decision will be for the judge.

Nevertheless, it is encouraging to see domestic abuse, in all its forms, (finally) being taken seriously by Cafcass, and the child’s experience placed at the centre when considering the new starting points. The movement away from “contact at all costs” and the trauma-informed position that there is no such thing as historical domestic abuse are particularly welcomed.

An understanding of trauma and how it impacts victims, including how they present to family justice professionals when reporting the abuse they have suffered, is vital if we are to collectively improve the experience of victim-survivors who require the assistance of the court when dealing with their perpetrator. All practitioners should be trauma-informed, as well as Cafcass.

However, a word of caution, by having such specific starting points of no contact, might this galvanise parents to be the first to make allegations? Whilst domestic abuse is a huge problem with potential catastrophic consequences if not properly investigated, judges will have to be mindful of any abuse of this new policy.

RChristie@fladgate.com

nataliesutherland@burgessmee.com