Some of you may already be familiar with the Pathfinder Pilots being implemented in Dorset and North Wales. These pilots, funded by the MOJ, are intended to trial an investigative and problem-solving approach to private law proceedings with a particular focus on improving court responses to domestic abuse and enhancing the voice of the child within proceedings. Since March 2022, family courts in Bournemouth and Weymouth in Dorset and Caernarfon, Mold, Prestatyn and Wrexham in North Wales, have been piloting this approach.
The changes in this new model include more in-depth initial information being gathered by Cafcass and this includes speaking to children before the first hearing in most cases. There is also a focus on better integration of agencies beyond the courts, such as those specialising in domestic abuse or mediation, to give the best response to families. HHJ Chris Simmonds, Designated Family Judge for Dorset and HHJ Gaynor Lloyd, Designated Family Judge for North Wales, recently spoke at a webinar with Nuffield Family Justice Observatory about the elements of the pilot that are proving most effective; the challenges and issues that have emerged and how they have been addressed.
HHJ Simmonds explained the key differences between this new model and standard private law proceedings under the CAP. He said that the pilot approach is an investigative one with Cafcass being at the core. There is an early gatekeeping hearing to look at the information. Cafcass will then investigate welfare issues. By considering the issues in a case early on they can identify whether the family might benefit from early out-of-court dispute resolution. They frontload the engagement with the parents. Cafcass will go out and speak to the family, identify families with a risk of domestic abuse and draw risk to the judge’s attention, if appropriate. Cafcass will engage with the children directly early in the process. If the parties are coming to court, they will make sure the judges have the right information early on to make the right decisions. Cafcass will try their best to help the parties avoid coming to court at all or, alternatively when they come to court, that one hearing is the final hearing.
HHJ Lloyd said that this model is meant to enhance the court’s ability to hear the voice of the child. The author of the Child Impact Report (CIR) will speak to both parents and then to the children. The reporter will then feed back to the parents what the children have said, this often leads to a reframing or a climb down. The Cafcass officer will give the parents a heads up as to what the likely recommendation is going to be which often leads to an early settlement. They are very careful about language, the process is very non-adversarial, and they look at the impact of adult behaviours on children which is a powerful way of getting parents to stop focusing on each other and focus on the children. The CIR report specifically looks at whether the children wish to participate in proceedings or meet the judge, and they are also looking at ways to communicate the result to the children. The voice of the child is central to this model.
This model is intended to provide for better integration of the court with support services. HHJ Simmonds explained that with the Pathfinder model, you have to leave silos and get out to speak to domestic abuse charities and other organisations. He said that he has never seen so many domestic abuse support workers in his court, they are allowed in unless there is very good reason not to. That has been a refreshing change.
Initially, they do a DASH assessment and involve IDVAs from the beginning. They are also engaging with mediation services. 5% of cases are being stayed for mediation. At the earliest opportunity when the CIR author meets the parents, they signpost them to different services. There is much better integration between the court and these services. The domestic abuse charities, family hubs, Cafcass etc are all working together because they know each other now.
In North Wales, if there is any issue of domestic abuse, they make a referral to 2 main IDVA services. Many people prefer not to engage with DA services on an ongoing basis, but the offer is there and signposted to them. They are finding it much easier and quicker to assess risk and all those involved have had specific training to enhance their understanding of assessing risk.
HHJ Simmonds talked about Practice Direction 36Z which he described as “a really simple read” which goes through each of the stages and tells you what you expect at each stage.
Discussing the successes of the new scheme, HHJ Lloyd reported that it is universally popular with all those involved in the system. It is kinder and much less brutal for all involved. Relevant issues are grappled with and identified early. There is a huge difference compared to the CAP in identifying issues and allocating resources. Gatekeeping is successful, there is gatekeeping on allocated days, with gatekeepers sitting back-to-back doing up to 6 cases each. They give robust and full directions and a clear steer to the receiving judge as to how to deal with the case. That has led to more consistency. In North Wales, they have 2 tracks – the more complicated cases have a directions hearing at 9 weeks (following gatekeeping at week 7) and the less complicated ones get a final hearing within 10 weeks of issue. There is very positive feedback about the speed of resolving matters.
It is not yet clear if or when the pilot will be rolled out. However, the Domestic Commissioner’s July 2023 report (“The Family Court and domestic abuse: achieving cultural change”) calls Pathfinder Courts to be resourced appropriately as part of wider efforts to roll out nationally and comments: “The Commissioner is aware that much of the praise generated by Pathfinder Courts is due to the reduced adversarial approach to private family law cases, with an emphasis on the child and an abuse-informed approach to cases. In addition to this, the provision of holistic support for parties throughout proceedings has also been extremely beneficial in reducing the stress of the Family Court for families. The emphasis on a more investigative approach to private family law children cases was a recommendation of the Harm Report and has proven to be effective in reducing stress levels within proceedings and supporting all parties.” It seems likely that the Pathfinder Pilot will be extended to further courts in 2024/2025, so it may be worth keeping Practice Direction 36Z handy just in case it finds its way to a court near you.
SUMMARY OF THE PATHFINDER PROCESS AS SET OUT IN PRACTICE DIRECTION 36Z
- Parent makes application.
Initial gatekeeping (Judge or Legal Adviser) – Gatekeeper will:
- issue directions on the issue
- direct that the applicant or parties attend MIAM
- give directions for an accelerated hearing if urgent issue requires it
- give directions for filing and service of evidence
Stage 1 – Information Gathering and Assessment
Information is gathered to complete a Child Impact Report (CIR), this involves safeguarding checks, parental engagement, indirect or direct engagement with the child; a DASH assessment, and consideration of any other cases involving the children or parties.
Stage 2 – Interventions and/or Decision Hearing
The court must exercise its discretion as to how to enable the application to proceed to a conclusion. This may include an activity direction, recommending non-court resolution, considering the appropriate means of monitoring and reviewing any agreement made between the parties, and holding a Decision Hearing.
At a Decision Hearing the court will investigate the issues not agreed and make decisions on them, exercise its discretion as to what order to make on the application, give directions about the Review stage, and consider how the decision of the court should be communicated to the child.
Stage 3 – Review
The Review should be a means of contacting the parties, including the child where appropriate, to determine how the order is working for them. It should focus on the safety of the parties and children, post-order support and follow-up or signposting to sources of support, not on checking order adherence. It would normally take place 3-12 months from the date of the order.