On 11 August, the Cafcass policy and communications team emailed us in reply to our comments on their revised framework. We explain what they said below. We will now write again, as well as alert them to this blog through twitter.
They told us (our summary not their exact words):
- The draft framework was on their website for external and internal scrutiny for no more than 4 weeks (posted on an unspecified date in July)
- They published a further revised version the day they emailed us: http://cafcass.gov.uk/news/2017/august/the-updated-operating-framework-launches-today.aspx.
- Though principally an internal guidance tool, the Operating Framework is an evolving document so feedback, is welcome at any time. If you follow the link it now specifically says: The updated Operating Framework launches today: the Operating Framework is an up to date, evolving document and we welcome suggestions at any time via email@example.com Read the Operating Framework.
They also told us they have revised the framework in response to our comments as follows:
- Links have been amended so they take readers to external publicly accessible sources (where available) and the many policies, research tools and templates already published on the Cafcass website rather than to unavailable intranet sources.
- A link to the Transparency Project Recording Guidance: Parents recording social workers –A guidance note for parents and professionals has been added to the Cafcass Recording policy.
- Reference to separate internal legal policy on recording by families has been removed with the whole recording policy now transparently in the Framework. (They said there was very little in the internal policy not already in the publicly published Framework version but they’ve now added what wasn’t).
We’ve cross-checked the versions and found this apparent change:
REMOVED FROM THE JULY VERSION: If FCA’s have concerns for any particular reason, the matter can be put before the court to seek a direction, particularly if the FCA has any concerns the recording may fall into the hands of individuals who are not entitled to have access to it or that it may be put on social media such as YouTube
REPLACED IN THE CURRENT VERSION WITH: In exceptional circumstances the FCA may wish to seek directions from the court about the recording of the interview, particularly if there are concerns about information being disclosed. For example, the FCA may be concerned that information exchanged during the interview – which under court rules is confidential to the court– will be disclosed if the recording is posted on social media or shared with people who are not entitled to have access to it.
What this doesn’t make clear is that if the recording is posted on social media or shared with others, this wouldn’t necessarily breach court confidentiality rules (broadly speaking court rules prohibit distribution of material that has entered the proceedings as evidence or a filed document, and arguably recordings of such interviews do not fall within those rules, particularly before the filing of any report based upon such the interview in question). We think it is likely to mislead some FCAs and litigants as drafted. We’d invite Cafcass to consider something more on these lines:
In exceptional circumstances the FCA may wish to take specific legal advice or seek directions from a court about the recording of the interview. For example, if the FCA is worried that the recording (or material from it) has or will be distributed in a way that infringes court confidentiality rules or places someone at risk of harm, such as the child, other parent or a worker.
Publishing the recording or material from it (including online) isn’t an automatic breach of court confidentiality rules, even if material within the interview (or even the transcript itself) later becomes evidence in court proceedings. The question would be whether the interview was actually produced for the purposes of the court case and/or whether publication was likely to identify a child as subject of ongoing proceedings (A recording of a meeting may not be covered by the court confidentiality rules). The court also has power to make other orders about publication including injunctions against publication, where warranted. Legal advice should be taken if a FCA considers such an order may be necessary.
See page 9 of the Transparency Project Guide to Recording and Southend Borough Council v CO and DW  EWHC 1949 (Fam) explained here at the Transparency Project: https://www.transparencyproject.org.uk/can-parents-publicly-petition-against-care-orders/ )
This is a good example of the value of a transparent consultation process. Cafcass have been relatively quick to draw up a recording policy but we are also aware of a growing number of councils, developing their own policies to help staff work in partnership with families, with confidence and transparency in a developing and sometimes challenging area of law.
Cafcass also confirmed that:
JOINT CAFCASS / ADCS AGREEMENT ON WORKING TOGETHER IN CARE AND PRE-PROCEEDINGS
- The references to the joint Cafcass/ADCS Agreement we flagged were not actually references to this joint Cafcass /ADCS Agreement which has now been withdrawn, but to other joint protocols still in operation. (See also section below on unanswered points)
DEVELOPING POLICY ON INFORMING YOUNG PEOPLE ABOUT MEDIA AND PUBLICATION ISSUES IN THEIR CASES
- Our suggestions that Cafcass might develop policy (and use the new Transparency Project Guide for Families and Professionals as a starting point or complementary tool), have been passed to the operational management team for consideration.
CAFCASS didn’t respond on the other points we raised:
…and indeed didn’t even acknowledge that we had raised them.
- The suggestion they might publish responses received and confirm the extent to which they have incorporated feedback from them in the further revised Framework.
- The suggestion that publishing a document without marking or summarizing changes from the old document is a significant barrier to true transparency – the newly published further revised Framework doesn’t do so either.
- Our suggestion that when publishing a revised document it helps transparency if key stakeholders are informed by email / twitter. We saw no sign of the further revised published version being announced in any public way beyond posting on their website and the email to us.
JOINT CAFCASS / ADCS AGREEMENT ON WORKING TOGETHER IN CARE AND PRE-PROCEEDINGS
- Our suggestion of a formal announcement (to follow the apparent withdrawal) to prevent confusion. (Though we note that on 17th August a joint statement was published by ADCS / Cafcass saying so).
GUIDANCE ON USE OF CAFCASS PROFESSIONAL TIME
- Our request that they clarify the status of the Changes In Use Of Cafcass Professional Time To Bring Most Benefit To Children Within The Resources Available.
TRUST AND ENGAGEMENT – GENDER
- Our suggestion that they might avoid reinforcing gender based anxiety (irrespective of merit) by engagement, research, guidance, tools and training on topics of importance for children that men /men’s groups feel strongly about, as well as recent important work on domestic abuse of particular concern to Women’s groups. (The July draft Framework said they plan to engage with parental alienation behaviours within a wider Pathway being developed in relation toHigher Conflict Cases and to ensure information about the possible impact of alienation behaviours)
- If you haven’t responded because you didn’t see the ‘consultation’ in time, it’s not too late. Cafcass continue to invite constructive comment, irrespective of the time window, on the basis that the framework is an evolving operational document.
- We invite you to forward a copy of your comments and any Cafcass replies on the basis that we may publish these (since Cafcass don’t seem minded to).
- We will be emailing and tweeting this blog to Cafcass to thank them for their response and ask them about the outstanding points: further amending their recording guidance; unanswered aspects of our initial response; and the details for their lead in the operational management team considering whether policy is required on informing young people about issues of media reporting and judgment publication in their cases.