Cafcass memorandum in response to JCHR
Legislative Scrutiny Priorities for 2010, Priority 7: Reporting
of Family Court Proceedings
1. Cafcass (Children and Family Court Advisory
and Support Service) is a non-departmental public body accountable
to the Secretary of State for Children, Schools and Families.
We work within the strategic objectives agreed by our sponsor
department and contribute to wider government objectives relating
to children. Cafcass is independent of the courts, local authority
children's services and health authorities.
2. We operate within the law set by Parliament
and under the rules and directions of the family courts. Our role
is to:
— Safeguard and promote the welfare of
children;
— Give advice to the family courts;
— Make provision for children to be represented;
and
— Provide information, advice and support
to children and their families.
3. The main types of cases in which the
courts ask Cafcass to help are when:
— Parents or carers are separating or divorcing
and have not yet reached agreement about arrangements for their
children;
— Local Authority Children's Services have
become involved and children may be removed from their parents'
care for their safety; and
— Children could be adopted.
4. Cafcass has a core responsibility to
represent the best interests of children and young people by ensuring
that their voices are heard and their feelings expressed in all
family proceedings. We therefore play a role in upholding Article
12 of the UN Convention on the Rights of the Child: "the
child shall in particular be provided the opportunity to be heard
in any judicial and administrative proceedings affecting the child,
either directly, or through a representative or an appropriate
body". We are aware that in some circumstances the facts
of the cases we work with may involve the balancing of competing
rights. We are also aware that the proposed legislation involves
consideration both of the right of the media to report in the
public interest, and the right of children and families to privacy.
5. The Children, Schools and Families Bill,
which aims to establish a more open reporting system for family
proceedings, is likely to impact on the way in which young people
engage with Cafcass practitioners, in terms of the information
that young people will in future be willing to share, through
Cafcass practitioners, with the courts. Cafcass, as part of the
policy development process, has been acting as a conduit for young
people who are involved with us, in order that their experience
of both Cafcass and the wider family court process can inform
the design of proposed changes in legislation and court practices.
6. It is vital that Cafcass practitioners
are able to engage effectively with young people in order to ascertain
their wishes and feelings and to communicate these to the court,
along with Cafcass analysis and recommendations about how the
court might best promote their welfare. When undertaking case
work, especially involving older children and young people, it
is important to establish an open dialogue. This essential work
requires care and skill, and may take some time to complete, as
many young people are understandably cautious about disclosing
sensitive personal information to an adult who has only recently
become known to them.
7. Consultation with the Cafcass Young People's
Board[75]
has identified a number of concerns about the presence of the
media in court. This seems, at least in part, to arise from young
people's perception of the media's approach to reporting on the
private lives of celebrities. The Board has indicated that it
hoped the media would not sensationalise family proceedings in
the manner prevalent in the popular press. Another concern is
that, despite the planned anonymisation of media reports, the
identity of families involved in proceedings could still be apparent
should the reporter publish specific incidents or case details-this
would be a significant concern in close-knit communities. The
Board have also identified that the internet, in particular the
"comment" sections common on newspaper websites, is
likely to be used for the addition of speculation, comment, and
opinions about case details that have been reported.
8. It is important to make clear that, even
at present, Cafcass practitioners do not "keep secrets"
because they are bound to report all relevant information to the
court, nearly all of which will be available for consideration
by the various parties (parents, local authorities and others)
who are involved in the case. Many young people already voice
the concern that they do not want some wishes and feelings to
be communicated to the court as they fear it may upset their parents,
or make them angry. On occasion, this already limits the extent
to which information is disclosed to Cafcass.
9. This constraint is likely to be compounded
by young people's anxiety that media representatives will be present
to listen to, and able to report some details of, such information
on a wider basis than is currently permitted. It is important
to bear in mind that children and young people only very rarely
attend hearings in family court proceedings of which they are
the subjects and as a result, practitioners will need very carefully
to prepare young people for what may appear in the media, based
on what has taken place in court.
10. There is a general consensus within
the Board that an increased knowledge of the proposed limitations
to be placed on the media in family proceedings will go some way
towards alleviating their anxieties. The Board does accept that
communicating young people's feelings to the court is in their
best interests, even if it makes them uncomfortable. It has been
suggested by the Board that the proposed legislation could help
others who find themselves in a similar situation to have an understanding
of what might happen, provided there is sensitive reporting of
family proceedings.
11. Identifying, and then mitigating, these
concerns is essential if Cafcass practitioners are to maintain
effective relationships with the children and young people whom
they serve. It is to be welcomed that a commitment has already
been made for the provision of additional resources to Cafcass,
in recognition of the additional time that will need to be spent
in working with children and young people, and reassuring them,
if the legislative proposals are implemented.
12. At present, Cafcass practitioners have
a duty to ensure that all service users are aware that anything
they share with a Cafcass worker can be used in the reporting
to court process, and could be read by those involved. This is
explained to young service users through discussions and leaflets,[76]
and practitioners are skilled in explaining this process in a
sensitive and age-appropriate manner. This already existing discussion
could be developed to include references to media attendance at
and reporting of family proceedings.
13. The Young People's Board continues to
stand ready to assist Ministers, and their policy advisers, having
already had direct contact with them about this vital issue during
the lengthy period during which the current proposals have been
formed. Its members could play a significant role in the development
of practice guidance should the Children, Schools and Families
Bill be passed, as they are all young people who have experienced
family court proceedings. A particular area of expertise is how
any changed arrangements might be explained to children and young
people who are the subjects of future family proceedings, where
the media's presence and capacity to report on their cases may
well be an additional anxiety, beyond that which already arises
from being involved in family court proceedings.
APPENDIX
CAFCASS YOUNG PEOPLE'S BOARD RESPONSES TO
MEDIA QUESTIONNAIRE
There is a Children, Schools and Families Bill
currently passing through Parliament. One section of this Bill
will let the media come in to Family Court Proceedings, and write
articles about the cases they watch. This will help people to
understand what happens in the Family Court, and how the judges
reach the decisions they do, which is often misunderstood by those
who haven't gone through the Court themselves.
Newspapers will not be able to use the names
of children or their families, but they will be able to report
on what the case is about.
Cafcass have been given the opportunity to respond
to the Joint Committee on Human Rights, to say how our practitioners
will work with young service users to try and make sure these
changes, if the Bill is passed, do not affect the relationship
between young people and Cafcass practitioners. We still want
young people to feel comfortable in sharing their thoughts and
feelings with their FCA.
We have seen your "Tips for Newspaper Editors"
and would like to build on this by seeking your views on the following
questions:
1. How did your FCA explain the court process
to you? Did you feel comfortable telling them things which you
knew might be shared in court?
1. They explained that Cafcass will talk
to everyone concerned and then present a report to the courts
on what they think the best decision is for everyone. Some young
people are reluctant to say everything they want to as they may
be undecided about how they feel or they may want to see both
parents and don't want to have to decide. A lot of young people
find themselves in conflicting and confusing situations where
there is a lot of uncertainty. The media will add an extra burden
to this pressure if the young person knows that what they say
will not only be heard, but recorded for the wider public to see
and hear. Especially for young adolescents who may want their
private lives to remain that way for fear of reflecting on them
personally or there future prospects.[77]
2. I didn't feel that my FCA explained the
process well, as when I had to attend a meeting with the judge
I thought I had said something wrong. Although it was difficult
for me to talk to them I knew that if I didn't share my views
with the FCA a judgement would have been made without hearing
my thoughts, which I wanted to give.
3. The first explanation of the court process
I received was unclear; it was only as the case progressed I became
more aware from my own questioning. As time went on I verbally
received more guidance regarding the court process from different
FCAs. Despite it being emotionally challenging, I did give my
views regarding the situation to my FCA, I saw this as important
to ensure that those involved with the family case understood
my perception to matters relevant to me.
4. I felt comfortable at the time as they
were really nice and friendly, what they didn't tell me was that
they would quote me to my dad, which later resulted in nastiness
from my Nan. This left me rather upset, I felt betrayed by the
people I had trusted with details of something that hurts me deeply.
5. I wasn't explained much about the court
process or at least I didn't understand the things I was being
told. On most occasions I wasn't happy about talking to anyone
other than my parents directly.
6. I don't remember going through Cafcass
as I was very young at the time so do not remember having an FCA.
7. Unfortunately I only saw my FCA on one
or two occasions. We never got as far as discussing the specifics
about what I needed to be said to the court but she did give me
a vague outline of what her role was. I would only feel comfortable
talking to my FCA if I knew she would do something.
8. Although I don't have any direct experience
of meeting an FCA, I think personally, if the FCA explained
the process and made me feel comfortable that the media won't
be mentioning my name or personal information then I would
feel more secure. Some children might back down and feel less
comfortable sharing certain information knowing that the information
will be shared and might not want everyone to know. I would be
worried about the media mentioning what town I am from
as my friends or neighbours might have a clue that it is
me and they will know the full story of my case in
more detail. Unless the media publish a case of a child in
a different county, so therefore all counties will get a grasp
of a case from someone from a different area. I feel it's
important for the FCA to explain the court process and mention
the media but state that no names will be mentioned in the press.
If I know I can trust the system then I would be comfortable knowing
that my information is kept anonymous. Perhaps if the information
a child feels uncomfortable about sharing with the media, and
only wants the judge to know, then there should be exceptions
as such.
9. I didn't have an FCA but I'm sure they
would have explained the court process to me. If not, I would
have asked about it as I'd be desperate to know every little detail.
I would feel comfortable telling someone from Cafcass things that
might be shared in court.
2. What concerns did you have about sharing
things with your FCA? How did your FCA help you not to worry so
much?
1. I think it is difficult for young people
to tell Cafcass workers things that may be said in court or said
to another parent as they may feel a divided loyalty and may be
afraid to speak out. I think some young people can be reluctant
to tell the truth about how they feel and may just repeat what
they have heard another adult say because they feel it is the
right thing to do, so as not to upset or hurt anyone. Cafcass
workers often reassure young people by saying that what they say
will be kept in confidence unless their safety is at risk and
I think this reassures the young person and enables them to speak
more freely and openly about their experience.
2. I was concerned that what I was saying
wasn't being listened to, and that some of the questions I was
asked were not appropriate. They didn't provide much reassurance
at the time, which made me worry more.
3. I was concerned regarding privacy when
talking to my FCA due to one meeting being held at school, using
a room directly off the main corridor. I felt that this was an
inappropriate venue to discuss sensitive issues. The FCA provided
little reassurance at the time, although future meetings were
held in more appropriate settings.
4. I felt able to tell the FCA details of
my relationship with my dad and my wishes because they made it
clear they only wanted to help me and the situation was quite
relaxed, although I felt awkward being in a chair in the middle
of the room with two people, one on each side, staring at me.
When I started crying I felt even more uncomfortable because there
were no tissues near me and I had to wait for the lady to get
me some.
5. I wasn't sure who was trying to help
me and I was scared that I would say something that could put
someone in my family in trouble.
6. I don't remember going through Cafcass
as I was very young at the time. However, if I saw an FCA now
I would be concerned about what I am telling them, how can I trust
them?
7. I was concerned she was going to share
vulnerable information about me and not ACT upon it. She went
on maternity leave and I never saw her again so I cannot really
say she did anything to make me worry less. What she could do
to help me would have been to keep me informed. It would drive
me crazy when they said you are a young person so you are too
vulnerable to know what is going on as I had sleepless nights
from the anxiety anyway.
8. If the FCA understands enough to support
me and makes me feel that I will have no regrets in sharing info,
I would feel as if I can trust the FCA and share whatever I feel
I like without concerns or worries. However, there could be times
when FCAs might go home after work and talk about their jobs or
cases to their family. I would be concerned if the FCA is breaking
confidentiality outside of work. If the FCA made me aware that
the information she/he knows about me will be kept between
the FCA, court and the media only, then that's fair enough and
understandable.
9. FCAs should reassure you that your views
will be taken into account and that the judge will make the best
decision for you. They should make sure that your interests were
prioritised and that you were put first, and if something couldn't
be done, they'd tell you why not.
3. How do you think young people will feel
about sharing things with their FCA if they know there is a possibility
a newspaper could write about the case?
1. I think that young people will be more
reluctant to voice their opinions and will be scared to tell the
truth and how they feel for fear of worrying about another family
member. It may also lead to those children who come from families
which are suffering from domestic violence or other forms of abuse
to feel more vulnerable and less inclined to speak out about what
is happening.
2. I believe young people would feel newspaper
reports were intruding in personal matters, at a difficult time
for that young person. Some young people might worry about the
possibility of people outside their family knowing what's going
on, because the reporter may include the area, and details of
parts of the case that neighbours might recognise.
3. The majority of young people are going
to see, I feel, the media involvement as a negative impact regarding
how comfortable they feel throughout the process. I am concerned
that some may not speak as freely as they would have done without
the prospect of reporters, due to fear of being identified by
neighbours/peers etc. Even though the proposal places assurance
that names will not be used, it does not provide the same guarantee
regarding the bias slant the reporters are likely to place upon
any coverage of cases in family court proceedings. Members of
the public will make immediate judgements, which without being
fully informed (which is not appropriate) are most probably misguided,
inaccurate and inappropriate to share on internet news forums,
comments pages etc.
4. It depends what details will be shared
like real names and/or details of things that are personal to
them, as they might not want such details debated in the media.
However, if it was to help other people in the same situation
it might help them to know they would be helping others and to
understand they are not alone.
5. Depending on the age and personality
of the young person, some may be intrigued in the idea of minor
fame and others would be scared of revealing things that shouldn't
be told to the public.
6. I myself would tell the FCA less as I
wouldn't want my life on the front page of a newspaper, especially
not if friends and people in the local community would know it
was me.
7. There will definitely be a sense of reservation
on the part of a young person in my opinion. This is because family
issues are a private area and the odds of that remaining so are
low if readers can guess who the case is talking about.
8. I think there will be people who won't
feel comfortable with sharing certain things with their
FCA knowing people out there will get to read their case, in case
people can identify them. However, if certain measures are taken
to keep names/town anonymous, this will make them feel more
at ease. In some ways, I think there should be exceptions, if
a child feels they have things to say but are worried because
they do not want the media to know, there should be a way to
let the FCA know and therefore the FCA should be responsible
for making sure the media do not grasp that certain information
and only the judge has access to it. At the end of the case, if
the decision of the case does not sound right to people then the
judge should make the media aware that there were certain bits
of information that had to be kept private in case people don't
think why the court decision is not right. Otherwise this could
prevent children from mentioning important information to their
FCA only because of the media. I feel children should not have
to worry about the media too much as the case is about THEM
not the media. If a story was published about me in the same town
as I lived, there would be no doubt as to who it is. Therefore,
for the child's security, protection and of course confidentiality,
the case of a child MUST not be published in the same town to
prevent identification.
9. If it were me, I'd be much more hesitant
about it. I don't want my case to be publicised at all. Private
law should stay private. I wouldn't want people to know that my
father was abusive, as it isn't something I'm proud of at all.
10. This could be very scary to a young
person. If I was told that something I was going to say was going
to be published in a newspaper then I would be very wary about
what I said. The process is scary enough without the worry of
friends finding out things you don't want them to.
11. I think the young person would be very
reluctant because they wouldn't want "the whole world"
to know what they thought and what they said and things about
themselves.
4. How do you think FCAs could explain these
changes to young people, to stop them worrying too much, and encourage
them to still share their feelings?
1. I don't think they can. I think the best
option is to keep people's family life private and to not add
another invasion of privacy from an already overbearing "big
brother" state (see "1984" for proof of this).
I think that the family courts deal with very private and personal
situations and it should remain this way due to the sensitive
nature of some of the situations and the knock on effects it may
have to the children they are reporting about. It is more often
the case that the public can deduce those involved anyway, even
if names are not used.
2. Cafcass could create a booklet for young
people explaining what the reporters would write and why they
were there. FCAs would have to stress to the children that they
should work with the situation as it was still important to share
their opinions, so that their voice would be heard.
3. FCAs would need to be clear and consistent
with what they told young people regarding possible media involvement
within their cases. I feel it would benefit some young people
to be shown the type of document that the media would be likely
to write if they chose to report. This would reassure the young
person who would most likely be questioning of why the media could
become involved and what they would be permitted to report.
4. Tell them it will help others, they are
not alone, and try to be as natural as possible, not staring from
all angles as it felt they were in mine.
5. By calmly explaining that what is written
could help other young people and families directly or indirectly
through the experience that they have in courts.
6. I think to explain the changes would
be very difficult, as each child reacts differently to every question.
The best way forward in my eyes is to ask the child and family
if they mind a journalist being in the court. Like this it is
their choice. Also, if a news reporter must sit in, the child
and family should have the option for the paper not to be published
in their local community but elsewhere. I also believe the child
and family should see the article first before it is published.
7. Definitely break things down if a young
person is appearing distressed, and telling the youngsters, who
could do without the anxiety, as much information as possible.
Don't make false promises eg see you next week and then not show
up. The chances of a young person opening up will be low.
8. This can get more difficult for them
and harder to get information from a certain young person but
I feel the FCA should explain that these procedures are taken
for every case so equal every case is equal. The young person
in the case should also be made aware that although media
can use their case to publish in a newspaper, their names won't
be mentioned. This should put them at ease. I feel that if a child
does not want their town or county to be mentioned then this should
be allowed, however, the media could mention what court a young
person attended so people are at least aware of where the court
hearing took place but not the information relating to the young
person. The FCA needs to do their best in order to encourage young
people to share feelings and important information.
9. That's a really difficult question. I
am not in favour of the media being able to report on Family Court
Cases. All FCAs will be able to do is reassure the young person
and tell them that names won't be mentioned. They'd have to be
realistic, tell the young person what will and won't be reported
on. I'd absolutely hate my case being reported on, as people in
my local community might know it's me and my family. There must
be different ways for people to explain how Family Courts work
rather than writing about cases.
10. It has to be in a way which the young
people would understand. Not just saying it once and thinking
that they have done their job. It's important to make sure the
young person understands. If the young person is going to share
their feelings with an FCA (or anyone really) then they need to
feel comfortable and have developed a relationship with the person.
It's a lot about trust.
11. By explaining that it could encourage
other families to use Cafcass and it would therefore help other
children.
January 2010
75 http://www.cafcass.gov.uk/about_cafcass/how_we_are_organised/young_peoples_board.aspx
The Cafcass Young People's Board was set up in 2006 and is
made up of young people aged 11-18 years who have direct
experience of both Cafcass and the family courts. In this instance,
eleven members of the YPB responded to questions on how practitioners
could engage with service users to communicate changes from the
proposed legislation (see Appendix). Back
76
Cafcass produce separate leaflets detailing involvement in public
and private law. The leaflets are tailored to suit three age ranges:
under eight; 8-12 years; and teenagers-but can be used with
any child depending on their understanding and development. Back
77
The responses from the YP have been anonymised, with each child/YP
being assigned a number 1-12. Back
| 
