Family Courts Failing Children, Confused Cafcass and Lost Trust in Local Authorities

Article by Sydney Kowalczyk

‘Family courts are not fit for their purpose’, I heard this statement verbatim repeated over and over. Why do people say that? And, more significantly, are they right?

Family proceedings can usually be split into private and public. Private family proceedings do not involve government agencies; they relate to disputes between family members, such as who the child should live with or how much child maintenance will be paid following a divorce. Public family proceedings occur when the local authority gets involved, for example, when a doctor suspects a child of being physically abused and alerts the authorities.

A recent case highlights the failings of family court proceedings: Kristoffer Paul Arthur White, a convicted serial rapist was granted unsupervised contact with his daughter, of primary school age, following the advice of a Cafcass (Children and Family Court Advisory and Support Service) Officer.

To put this case into the context of the law, let’s start from the beginning: The Children Act 1989. This piece of legislation formed the roots of family law; in this article, I will focus on the three main principles established by it:

• Firstly, the concept of parental responsibility.
• Secondly, the courts must always act in the child’s best interests.
• Finally, intervening in the child’s family life is only to be granted when absolutely necessary.

Parental responsibility

Defined by the Act as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’, parental responsibility is granted automatically to all birth mothers, in contrast, fathers must gain theirs (commonly by being listed on the birth certificate).

An individual with parental responsibility can make decisions regarding a child’s upbringing. They decide what religion the child will follow, which school the child should attend, what medical treatment the child should receive, etc.

Crucially, parental responsibility can only be removed by the court in exceptional circumstances (e.g., in cases of abuse, withholding consent to an essential medical procedure, or when an adoption order is made). It can also be granted to a local authority through a care order.

Acting in the child’s best interest

The Act took this principle from the UN Convention on the Rights of the Child.

The Children and Family Court Advisory and Support Service, commonly known as ‘Cafcass’, works by appointing a social worker at the start of family care proceedings to provide families with a better experience and outcome in their case. By working closely with children and their families, they advise the family courts on what decision they consider to be in the children’s best interests.

As a general rule, children do not appear in court because it is considered too traumatic for them. Cafcass advocates for the child throughout the proceedings by instructing a solicitor to represent them.

Cafcass carries out safeguarding checks, meets with both parties and meets with the child alone when possible. They then compile this information into a report (a ‘Section 7 Report’), which is used as evidence to assist the court in determining the outcome of the dispute.

However, Cafcass is frequently criticised for its numerous failings. The Section 7 reports are often said to be factually inaccurate and based on limited observation, some Cafcass workers have been accused of ignoring and manipulating children’s views; others of not having adequate training in recognising signs of domestic abuse, hence not properly safeguarding children. They are often said to be biased against one party and even express views beyond their professional expertise. Theresa May famously referred to the introduction of Cafcass as “the biggest mistake in family policy”.

An increasingly common response to allegations of domestic abuse is a counter-allegation of ‘parental alienation’. This term has caused many children to be forced into contact with fathers accused of abuse (including convicted paedophiles). It is a tactic used by abusers, which the court enables by, for example, inviting unregulated experts to testify about parental alienation. However, the injustice extends beyond fake counter-allegations.

In White’s case, when challenged as to why he advised to grant a convicted sex offender contact with his young daughter, the Cafcass Officer said that “the father expressly did not accept these findings” until the final hearing. The mother requested that he be denied the right to anonymity. She accused Cafcass of enabling an abuser to hide behind the rights of his child in order to shield himself from the consequences of public and media scrutiny. Ultimately, the mother successfully appealed, and the court issued a transparency order, allowing the press to report most of the details of this case to the public.

Fortunately, White has since been stripped of his parental responsibility and decided he must stay away from his daughter until she turns 16.

Intervening in the child’s family life is only to happen as a last resort

If the local authority has concerns about a child’s welfare, it can apply to court to intervene in the child’s family life. They can apply for a ‘supervision order’, which places a duty on them to ‘advise, assist and befriend’ the child. Alternatively, they have the power to initiate care proceedings, which are more intrusive because if accepted, a care order grants them parental responsibility, which will last until a child turns 18 unless the court discharges it.

As with Cafcass, the local authority has been condemned for its failings. In the summer of 2024, BBC News reported on local authorities paying high fees to unregistered children’s homes to act as residential placement for the children under its care. The local authority opined that these children are often violent and suspected of involvement with organised criminal gangs, meaning that other places will not accept them. This pressures the local authority to agree to these placements, which are unregulated by Ofsted (therefore unlawful children’s homes) and have exploitive prices (effectively paid by taxpayers).

Moreover, a local authority can be involved in the deprivation of liberty orders (DoLs), which survivors are speaking up against after turning 18, as is the most senior Family Court judge in England, Sir Andrew McFarlane. Even the Children’s Commissioner for England voiced her concerns about the workers who supervise children on DoL orders. She warned that “It often means the end of [their] education” and that they cause “real deep trauma”.

Many speaking out claim that the physical force used against them was unnecessary and inappropriate and that the seclusion they were subjected to was cruel. Around half of these children were also placed in unregulated properties last year.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly reduced access to Legal Aid (government-paid legal fees) in family law cases. Preventative and early intervention services that aim to support families are disappearing due to local authorities’ financial constraints and funding cuts to health services, police, and schools.

Subsequently to The Children Act 1989, the Children Act 2004 was introduced. This happened in response to an Inquiry Report following Victoria Climbié’s death caused by serious abuse and neglect. It was implemented to provide further protection to children.

Neither Act efficiently guards against children going to school and to bed hungry. In fact, according to Child Poverty Action Group, a third of children in England living in poverty miss out on free school meals due to falling outside of the controversially strict and means-tested eligibility criteria. Another failing is how siblings are often separated during care proceedings after social workers subject them to a ‘sibling assessment’. Arguably, this decision significantly intervenes in the child’s family life, yet does not appear to happen as a last resort. This further echoes the inter-subjective sentiment of family courts failing families.

In conclusion, the Children Acts aimed to ensure that children are adequately cared for by their parents/carers and the state. Sadly, the recent case of White illustrates Cafcass’s incompetencies. In addition, the local authority’s latest failing was documented following the DoL order for victims to speak out. Further, most vulnerable families no longer have access to support services for themselves and initiatives such as free school lunches for their children. As of 2012, struggling families are deprived of legal representation due to LASPO legislation, hence not being able to even access the justice system. These are some of the reasons why family courts are not fit for their purpose.