Cafcass would need 200 more social workers to implement private law reform

Cafcass says it would need an extra 200 social workers should the government decide to roll out a reform reported to have improved children’s experiences of private law cases in pilot areas.

That is because the ‘private law pathfinder’ approach requires that family court advisers (FCAs) work with children and families much earlier in the process, and to tighter timescales, than under the current child arrangements programme (CAP).

Cafcass has calculated that while its FCAs see about 30% of children under the CAP, this rises to 80% under the pathfinder, which will be operational in 10 of the 42 family court areas in England and Wales by the end of 2025-26.

The Ministry of Justice (MoJ) has admitted that the need to boost Cafcass’s capacity is one of the barriers to rolling out the approach, in the context of an evaluation finding that it has substantially improved children and families’ experiences of private law cases according to practitioners.

Why pathfinder approach was developed

The pathfinder was a response to a 2020 MoJ-commissioned report by an expert panel on how the family courts handled harm to children or parents, such as domestic abuse or child sexual abuse.

This found that abuse was being systematically minimised, particularly to promote contact, children’ voices were going unheard, often due to practitioners’ lack of time, and there were significant barriers to victims reporting harm.

One of the root causes of this, the panel concluded, was an adversarial court system that re-traumatised abuse survivors, was not well-suited to determining the truth of allegations of domestic abuse and CSA and meant children’s voices were not heard.

The panel proposed that the government test an investigative, problem-solving alternative to the CAP, with the MoJ launching the private law pathfinder in response in 2022 in Dorset and North Wales.

What is different about the pathfinder approach

Under the CAP, a Cafcass practitioner carries out an initial safeguarding check of possible risks of harm to the child, drawn from other agencies and a telephone call with the parents who are the parties to the dispute. Practitioners typically do not see the child.

This is then summarised in a safeguarding letter to inform the first court hearing.

By contrast, the pathfinder involves an information gathering phase, during which the FCA – or in some cases, a council social worker - carries out an in-depth assessment to understand the impact of issues in the case on the children involved, resulting in a child impact report (CIR).

This is generally informed by speaking to the children – as well as the parents – to understand their wishes and feelings.

The court then reviews the report and may recommend non-court resolution, request further investigation of issues, make interim orders, such as periods of supervised contact, or hold a decisions hearing and make a final order.

‘Substantially improved experiences for children and families’

An MoJ-commissioned report on the implementation of the pathfinder in Dorset and North Wales, published earlier this year, found that practitioners had identified “extensive” benefits compared with the CAP.

These included “perceptions of substantially improved experiences and outcomes for children and families, fewer hearings and reduced time spent in court and better information gathering to inform safety planning”.

The early engagement of the child meant that their “voice was centred from the outset” and that “their needs and safety were prioritised throughout the case”, according to research participants.

Social worker time frontloaded creating ‘resourcing challenge’

Pathfinder cases cost Cafcass and Cafcass Cymru 4-7% less on average than those in CAP comparison sites.

The CIR took FCAs 19 hours to complete on average, compared with nine hours for a safeguarding letter in England. But this was offset by time saved on producing further intensive reports, notably section 7 welfare reports, which took about 25 hours on average, the report said.

However, under the pathfinder, FCAs must complete most of their work in the first six to eight weeks of a case, with the CIR expected to be delivered within six weeks. By contrast, the work involved in a CAP case, though potentially greater, is spread over a longer period of time.

The evaluation said this created a “resourcing challenge” for Cafcass and Cafcass Cymru.

Lack of social workers a barrier to rollout, ministry admits

The issue was addressed in a recent inquiry on improving services for children in the family courts, by the House of Commons’ public accounts committee.

In an evidence session in June, the committee quizzed MoJ officials on why the pathfinder had not been rolled out despite its reported benefits.

In response, then interim permanent secretary Amy Rees cited two reasons: that it did not want to rush the reform, given that it concerned children, and the need to “flip resources in the system quite significantly”, in the context of there being a backlog of court cases.

“In order for this to be a success, you have to get the backlog down," she said. "You have to have more social work capacity up front. That takes a little bit of time.”

200 more social workers needed, says Cafcass

Giving evidence alongside Rees, Cafcass chief executive Jacky Tiotto said “We currently see 30% of children in family court proceedings that are private. That will flip to be about 80% in the pathfinder model. It is very efficient for the courts and for [Her Majesty's Courts & Tribunals Service], but for us it requires a lot more social workers.”

She said it had calculated that 200 more FCAs would be needed. As of March 2024, it employed 1,692 social workers.

In a statement to Community Care for this story, a Cafcass spokesperson said that, in pathfinder areas, it was “seeing more children earlier in the proceedings, allowing us to understand what life is like for them more quickly and identify the harm and risk of further harm for them more quickly than under the [CAP]”.

“This change in how we work requires more time and resource from Cafcass," they added. "The estimated additional 200 family court advisers is based on our calculations which take into account the extra hours required to see more children in person, and the travel time and the associated work involved in seeing and engaging children.

“We are still in discussion with the Ministry of Justice about how this extra capacity could be resourced if the pathfinder model is expanded further, and cannot comment on these discussions while they are ongoing.

Council costs more than twice as high in pathfinder areas

The evaluation report also found that local authority costs in pathfinder areas were more than double those in comparator CAP localities because councils were involved in more cases under the new approach.

In its report, published last month, the public accounts committee recommended that the MoJ, in conjunction with the DfE, publish a plan and timeline for the wider rollout of the pathfinder within the next 12 months.

This should include “an assessment of how the model will affect spending and how it intends to reallocate funding to Cafcass and local authorities as necessary”.