The New Domestic Abuse Practice Policy

On 9th October Cafcass issued a new Domestic Abuse Practice Policy which sets out the practice requirements that Cafcass Family Court Advisers (FCAs) and Children’s Guardians must follow when advising the court about the welfare of the child when there is domestic abuse.

Why has this New Policy been published?

In June 2020, the Harm Panel published a report, which set out concerns including that the family justice system does not effectively protect victims of domestic abuse because it is adversarial and that a ‘contact at all costs’ culture is prioritised. The report further set out that FCA’s and Children’s Guardians are not adequately resourced or trained, that they prioritise children spending time with a parent, even when a child expresses that they do not want to.

The report also illustrated that FCA recommendations to the family court do not draw on the advice of other professionals working with families during that time period.

In response, Cafcass established a national improvement programme which required all FCA’s and Children’s Guardians to undertake a compulsory learning and development programme, and which gave guidance developed with specialist domestic abuse services and families with lived experience of domestic abuse. Two senior SafeLives domestic abuse experts joined Cafcass on secondment for two years to work alongside and support the improvement work.

Learning from audit, family feedback, complaints, critical legal judgements, and serious incidents shows that there has been progress and improvement but there is more to be achieved. Errors in judgement continue with extreme consequences for children and adult victims.

This is the reason why a Domestic Abuse Practice Policy has been put in place. Every practitioner and manager is now required to verify that they have read and understood the policy and will incorporate it into their practice.

More about the specific provisions within the new policy

The new policy indicates that (not an exhaustive list):

  • FCAs and Children’s Guardians will use the words of children and adults who are victims of domestic abuse rather than language such as ‘claims’ or ‘alleges’ in reports to court. It is for the court to determine the facts.
  • If an adult tells a FCA or Children’s Guardian about a sexual offence or serious criminal violence, then a risk assessment must be sent to court and a child protection referral must be made. If the local authority does not respond satisfactorily, the FCA or Children’s Guardian must escalate the referral.
  • The starting point for recommendations about a child spending time with a parent who is being investigated by the police for a sexual offence, who has a conviction for a sexual offence and/or who has served a prison sentence for violent and sexual offences is for that child not to spend time with the parent due to the significant risk of harm and the risk of further harm to the child victim, as well as the impact on the adult victim of the abuse; and
  • FCAs and Children’s Guardians are required to provide clear, unambiguous, and compelling justifications in their reports to the court if they do not adhere to the starting points set out in the policy and if in their assessment and analysis, they recommend ‘time with’ or ‘live with’ arrangements when domestic abuse is being investigated, has been found, is known or is raised by a child or adult.
  • If a fact-finding hearing is being recommended, along with a risk assessment and a referral to a local authority children’s social care service, then consideration must also be given as whether any ‘direct time with’ arrangements that are already in place should continue or not until the fact-finding hearing.
  • Assessment of a parent who has been abusive will follow the principles in PD 12J, which include the perpetrator taking responsibility for the impact of their actions and addressing the harm they have caused, as well, of course, as whether contact can be safe.

The policy echoes the intentions of the Domestic Abuse Act 2021, Practice Directions 12J, and 12Q to protect child and adult victims of domestic abuse. Cafcass has also updated its Child Safeguarding Policy to align with the requirements of the Domestic Abuse Practice Policy.

Cafcass Chief Executive, Jacky Tiotto said:

“I am sorry that some four years on from the Harm Panel report, there are still children and adults in family court proceedings who do not receive the protection they deserve and require. Family Court Advisers and Children’s Guardians work hard through their assessment and advice to court to protect many children and adults from harm every day.

But for those for whom this isn’t so, it is not acceptable and we are determined to continue to improve and to strive to protect every child and adult in family proceedings. The new policy that we are publishing today is a very significant step to further improve the way, together as a system, we protect child and adult victims of domestic abuse.”

How can we help?

It is important that both children and adult victims of domestic abuse are protected at all costs during Children Act Proceedings. If you or anyone you know may be in the situation then we recommend that you seek independent legal advice to discuss your options.

Our team of family law experts has a wealth of experience and will provide clear advice to guide you through the process. Please contact our Family Team on 01206 700113 or contact us.