News | June 25, 2020

Cafcass and coronavirus: attending family Court protocol

Cafcass (the Children and Family Court Advisory and Support Service) represent children in family court cases in England and “put children’s needs, wishes and feelings first, making sure that children’s voices are heard at the heart of the family court setting, and that decisions are made in their best interests”.

The organisation is involved in a variety of family law matters in the family court, including private law proceedings (the most common example being where parents have not been able agree the child arrangements dealing with whom a child should live or time spent with the other parent), as well as care proceedings and adoption.

In light of the current coronavirus situation, Cafcass closed all of its offices on 20 March 2020 but has continued to assist children, families and the Court on a remote basis.

On 1 June 2020 Cafcass published its ‘attending family Court protocol’ – looking at its position from 1 June 2020 until 1 September 2020, which they refer to as “stage 1 recovery”.

This is because there was – and still remains – some restriction on attending Courts (although some Courts have remained open – however, generally, in the main, dealing with urgent cases only).

This has led to some Court hearings being heard remotely – for example, by telephone or video conference.

Other Court hearings have been postponed until a later date. This is causing an inevitable backlog in cases – despite the best efforts of all involved.

Delays are obviously very difficult for the participants engaged in any Court proceedings but in children proceedings this is particularly concerning, with the relevant legislation that governs this area in England and Wales  – that being the Children Act 1989, with Part 1 (1) (2) – confirming that:

“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child” (my emphasis added).

It is inevitable that a delay in proceedings is likely to be detrimental to the child or children involved.

As mentioned above, this has meant that some Courts have remained open, to deal with urgent cases but not all cases are being dealt with in an appropriate timescale.

This led to a recovery group being set up (with the Chair being Cafcass’ Chief Executive) to consider:

“how the family court can move towards operating a less restrictive regime to expand the capacity of the courts to hold hearings while ensuring participants are kept safe. The task is to resolve the apparent tension between protecting staff and reinstating, as far as possible, the system of court hearings”.

Consideration has been given to and reference has been made to:

  • Courts re-opening but following the social distancing protocols;
  • Regular deep-cleaning of the Courts;
  • Continuing with remote hearings in some cases (particularly for those who may be more vulnerable health-wise, those with potential childcare difficulties and those who may current be facing travel restrictions);
  • For its staff, Cafcass have stated that (for the period in question, as referred to above) they will attend hearings remotely, unless there is a compelling reason for them to attend in person. This may in some cases result in a hybrid Court hearing – where some participants attend in person – and others attend remotely;
  • If the Court insists in some cases, for Cafcass to attend the hearing in person, then Cafcass may challenge this in appropriate circumstances;
  • Cafcass would expect the Court to provide confirmation in advance of any in-person hearing that there are sufficient safeguards in place – such as, sufficient space for social distancing, etc.; and
  • Cafcass will ensure that it liaises with the Court about hearings and “will make every effort to avoid adjournments when the only reason is the pandemic and will, together with the court, attempt to ensure that decisions for children can be reached taking account of the need for fairness in the process”.

Cafcass has indicated that it feels that its remote assessments in children cases that have taken place in recent times, have worked well, which is great news.

Cafcass has also said that it hopes that its protocol “will enable [them] to manage [their] work in a balanced, transparent and fair manner, taking account of [their] duty to safeguard and promote the welfare of children, advise the family courts and to be a responsible and kind employer”.

Cafcass’ protocol will be reviewed in due course – as will all the procedures concerning attending Court in person, remote hearings and so on.

I do anticipate that remote hearings will continue to take place for some time – and I do also anticipate that in some appropriate cases, they may become the “norm”.

Time will of course however tell.