Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
Comment by Judith Masson, Professor of Socio-legal Studies, University of Bristol.
It is clearly not satisfactory for the courts to make decisions about contact in ignorance of police domestic violence unit involvement or social services concerns about a family. The fact that the courts role is facilitating dispute resolution or approving an agreement between the parties by making a consent order rather than determining whether contact should be ordered, does not justify taking the ostrich position to child safety issues. The 'gateway forms' can only provide limited information; it is well recognised that domestic violence is a matter of shame for both perpetrators and victims who may, therefore, be reluctant to disclose it. Gateway forms may not be available early in the process when arrangements are made for the first directions appointment. In addition, the Department for Constitutional Affairs does not regard them as providing screening for domestic violence.
There is another way. In Manchester, CAFCASS screens all applications by checking whether parties are known to police, social services or probation. It can do this because it has good co-operation with the agencies concerned and is allowed to access the relevant information systems. When the Family Justice Council discussed issues around contact and safety at Dartington Hall in September 2005, there was universal support for extending such a system throughout the country. As one judge commented, 'Why would the court not want to know information relating to the child's safety?' It was, therefore, disappointing that first there were no provisions relating to safety in the revised Children and Adoption Bill presented to Parliament last autumn. Secondly, at the Bill's third reading in the House of Lords in November, the amendment accepted by the Government was limited to requiring CAFCASS to undertake a risk assessment where an officer is given cause to suspect that the child concerned is at risk of harm (cl 7). Fortunately, there is still time to amend the Bill to provide a statutory basis for such information sharing and to ensure that the courts always obtain available information before deciding to accept the parties agreement or refer them to dispute resolution.