Safeguarding letter was not provided prior to the FHDRA
17. Mr E complains that the safeguarding letter Cafcass filed on 14 August 2020 was not sent to him in advance of the FHDRA on 19 August 2020.
18. In its response, dated 10 September 2020, Cafcass explained that although Mr E had registered an Egress email account, he had not verified his email. It said that at the time of the safeguarding letter being filed on 14 August 2020, no email addresses had been verified, and so in accordance with its data protection policy it was not possible to send it by email. It said he verified his email on 21 August 2020, and a copy of the safeguarding letter was sent to him on 3 September 2020. It said the respondent’s barrister provided him with a copy of the letter before the hearing. It said that it had strict guidelines and a legal duty when sending out court reports and personal information. It also apologised that the FCA did not check whether Mr E had verified his email during the telephone interview on 11 August 2020, as this is usual practice.
19. Mr E has provided what he believes to be evidence that his Egress account was fully operational prior to Cafcass filing the safeguarding letter. This includes the welcome notification sent to him when he registered with Egress, and the record of emails he has sent to Cafcass through Egress. This only shows two emails, one he sent to the FCA on 10 August 2020, and one he sent to confirm his email on 21 August 2020.
20. Cafcass’ Privacy and Data Protection policy explains that it communicates a lot by email. It says:
‘When we are provided with your email address, we need to verify that it belongs to you before we send you private and confidential information electronically. We will email you and ask you to confirm your identity to our central email address. confirmyouremail@cafcass.gov.uk by providing two pieces of verification, such as your date of birth and your address. Once you have confirmed your identity we will be able to send you information in the quickest and most secure way’
21. Cafcass’ Information Assurance policy says, ‘before sending protected information to a new email recipient, staff must first send a ‘verification’ email to confirm the correct address, which is achieved by the intended recipient confirming their identity’.
22. Cafcass explained in its complaint response that the welcome letter sent to Mr E when he registered for Egress on 2 July explains the need to verify his email. This is also clearly outlined in its policies outlined above. While we have not seen the contents of the welcome email, we can see from the evidence provided by Mr E that he has not verified his email address any earlier than 21 August 2020, and it was necessary for him to do this for Cafcass to provide a copy of the safeguarding letter.
23. The Family court procedure rules under the head of ‘Safeguarding’ says:
‘13.7
Within 17 days of receipt by Cafcass/CAFCASS Cymru of the application, and at least 3 working days before the hearing, the Cafcass Officer or WFPO shall report to the court in a Safeguarding letter/report, the outcome of the risk identification work which has been undertaken’
24. An article on Cafcass’ website entitled ‘Holding to the spirit of the Child Arrangements Programme for First Hearing Dispute Resolution Appointments’ says: ‘A summary and analysis of the available safeguarding information and any issues arising from this is then provided to court in a safeguarding letter, sent prior to the FHDRA. It is our practice to send the safeguarding letter to the parties, as well as the court’.
25. The court procedures state that the safeguarding letter is only to be sent to the court. As such, Cafcass are under no obligation to also send it to all parties concerned. However, it chooses to do this anyway where possible. We therefore consider that Cafcass acted in line with its policies in not sharing protected information to an unverified email address. We acknowledge that this must have been frustrating for Mr E. We note he was provided with a copy of the safeguarding letter, prior to the first hearing by the respondent’s barrister. We therefore do not consider that there are any indications of maladministration by Cafcass.
Content of safeguarding letter
26. Mr E complains that the safeguarding letter dated 14 August 2020 was biased and contained misleading content. This particularly relates to where it says: ‘In January 2015. [daughter] reported an incident of domestic abuse (not [partner]). No role was identified for Children’s Services and the Police were not noted to be involved’, and ‘I have limited information from agency checks to support the allegations at this stage’.
27. In relation to the domestic abuse incident, Mr E is of the view that as it specifically stated that the incident did not relate to his daughter’s partner, it should also have clearly stated that it did not relate to him.
28. In relation to the agency checks, Mr E is of the view that by stating ‘limited information’ this implies that Cafcass has some information to support his daughter’s allegations towards him, and that ‘at this stage’ implies that it has some agency checks still outstanding in relation to him. Mr E says that these two examples of misleading information, taken together, could mistakenly lead to the conclusion that the ‘limited information’, and incident of domestic abuse, relates to him.
29. In its response, dated 10 September 2020, Cafcass explained that significant factual errors should be referred to the author, but any other aspects such as disputing the contents, or opinions expressed, must be addressed in court. It said that as Mr E had raised concerns, in relation to evidence and views raised within proceedings, this should be addressed in court. Cafcass also explained that it did not find fault with the wording used in the safeguarding letter, or that it implied that the domestic abuse incident related to Mr E. It said this was because the information from the local authority states the incident was with an ex-partner, which is why it stated that it was not with the current partner. However, Cafcass said it would send a clarification letter to the court on this point.
30. We have read the safeguarding letter and we can understand why Mr E is of the view that it could be perceived that the incident of domestic abuse could relate to him. This is because, although Cafcass has explained in its complaint response that the information from the local authority states this involved an ex-partner, which is why it specifically stated ‘(not [partner])’, this is not made clear in the safeguarding letter itself. However, it remains that the correct avenue to dispute the contents of the safeguarding letter is in court, as outlined on the first page of the letter itself. This says: ‘NOTE: Significant factual errors (not matters disputed by the parties) in this letter should be referred to the author. Any concerns about other aspects of the letter (for example, the extent of enquiries, the opinions expressed in it or matters disputed by the parties) must be addressed in court’. We understand that Mr E did raise his concerns about these matters in the FHDRA on 19 August, and that this was not fully addressed. Ultimately, it was still open to Mr E to raise his concerns again at a later hearing if he felt they were material to the court’s decision.
Conduct of the FCA at FHDRA
31. Mr E complains about the performance of the FCA at the FHDRA on 19 August 2020. He says the statements they made misled the court in a manner that was prejudicial to him. He says this relates to the FCA saying that he should have raised his issues with the safeguarding letter prior to the FHDRA; that he had not verified his email address; that the FCA attempted to avoid answering his questions and concerns about the safeguarding letter; and that the FCA misled the court by asserting that the court would know that domestic abuse applies to partners, not family members.
32. In its letter, dated 10 September 2020, Cafcass said it was not the intention of the FCA to appear rude, and the legal adviser at court has not raised any concerns about their approach or behaviour at the hearing. Mr E wanted to question the FCA about the safeguarding letter, but they were not the author. It said the FCA felt they tried to explain the very limited nature of the safeguarding letter. When Mr E tried to question the FCA about the ‘limited information’, the FCA could not immediately find the line he was referring to, and the legal adviser interrupted and moved on to summing up and agreeing next steps. Cafcass explained the circumstances of the safeguarding letter not being shared prior to the FHDRA. It also acknowledged Mr E’s point that domestic abuse is not always just between partners and can also be between family members, but that by making clear this did not relate to his daughter’s partner does not imply that it related to Mr E. It said the FCA was trying to explain that police reports usually relate to incidents of domestic abuse between partners. Cafcass did not find the FCA misled the court.
33. Cafcass’ Complaints and Compliments procedures says ‘Complaints relating to the performance or conduct of a Cafcass officer will be referred to the officer’s manager. Any serious concerns will be considered under the Employee Relations Policy’.
34. We understand that the FHDRA was a difficult time for Mr E, particularly as he was representing himself. We can see from the complaints file provided by Cafcass that Mr E’s complaint about the FCA was referred to their manager, in line with its complaints process. However, having both spoken to the FCA and considering Mr E’s complaint, the manager did not have any concerns about the FCA, and we can see from the complaint documentation they regarded them as a ‘competent, very experienced FCA, who understands the definition of domestic abuse and is a skilled listener’. If Mr E had any concerns about the FCA’s conduct during the FHDRA, then he could have raised this with the legal adviser at the time of the hearing, but he did not. Furthermore, we must also give weight to the fact that the legal adviser themselves did not raise any concerns about the conduct of the FCA at the hearing. Taking all this into consideration, it is difficult to see how we could reach a different conclusion. Also, as a decision was not reached during this hearing, we cannot link the fact that Mr E cannot see his granddaughter, to the conduct of the FCA at the FHDRA.
35. We consider that Cafcass have acted in line with our Principles of Good Administration which says: ‘All public bodies must comply with the law and have regard for the rights of those concerned. They should act according to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance, whether published or internal’. We have seen a copy of the transcript of the hearing, and while we acknowledge this is just the words and we cannot tell the way they were spoken, it does not support Mr E’s view. However, we do accept that he is entitled to his opinion.
Cafcass’ first complaint response
36. Mr E complains about Cafcass’ complaint response, dated 10 September 2020. Specifically, he did not accept Cafcass’ view that there was no implication that he was involved in the domestic abuse incident, though he was satisfied that Cafcass was going to write to the court to clarify this. In relation to Cafcass’ view that it found ‘no fault with [FCA] in the way this was written’, which related to the ‘limited information’ relating to agency checks, Mr E is of the view that Cafcass should have sent a revised safeguarding letter to court. Finally, in relation to the FCA, who attended the FHDRA, Mr E disputes Cafcass’ view that ‘there may be no independent evidence of unprofessional or rude behaviour’ as he has a copy of the transcript of the hearing, and therefore this aspect of his complaint should be revisited.
37. The issues Mr E raises in relation to the clarification letter being sent, and his request for Cafcass to revisit his complaint about the conduct of the FCA, will be addressed later in this report under those specific points of complaint.
38. In its letter dated 10 September 2020, Cafcass said: ‘I find no fault with [FCA] in the way this is written. The court will request clarification if it is needed and did not do so. I have explained that you will have the opportunity to address these points in your statement to the court. I will also be sending a copy of your complaint to the court so it will be on file that you find these statements misleading’.
39. We acknowledge Mr E’s view that the safeguarding letter was misleading in relation to the agency checks, and we understand his frustration that Cafcass did not agree with him or take any steps to remedy this with the court, as he wanted it to do. We acknowledge Mr E has a different opinion as to the action Cafcass should have taken on this matter. This in itself does not mean Cafcass’ response was wrong. Our Principles of Good Complaint Handling says we expect public bodies to be ‘open and honest when accounting for their decisions and actions. They should give clear evidence-based explanations, and reasons for their decisions’. We consider Cafcass has acted in line with this principle as it has explained why it reached its decision, and how Mr E will have the opportunity to address these matters. We do not find that there are any indications of maladministration in Cafcass’ response on this matter.
Clarification letter being sent to court
40. Mr E complains that despite Cafcass promising to send a clarification letter to the court to make clear that he was not involved in the domestic abuse incident, at the time of his complaint to us, it had failed to do this. Though he recognises that after he brought his complaint to us, Cafcass did send the letter. However, he says this was only because he told Cafcass that he had included this in his complaint to us.
41. We cannot see that Mr E has specifically raised this matter with Cafcass, as part of the two formal complaints he has made. However, we asked Cafcass for the reason it delayed sending this letter to the court. It told us that it was an oversight following completion of the complaint, meaning the letter was not sent to the court until 6 May 2021. It told us that when Mr E brought this to its attention, the letter was sent prior to the final hearing in June 2021.
42. We appreciate that this was frustrating for Mr E, particularly with his strength of feeling on this matter, and that he had to prompt Cafcass to do something it had promised to do as part of its complaint response.
43. We acknowledge that Cafcass should have sent the clarification letter much sooner than it did. However, we must also take into consideration that it sent the letter prior to the final hearing, and therefore the court had the opportunity to take this into consideration before it reached a decision as to what contact Mr E should have with his granddaughter. As such, we cannot link the fact that Mr E cannot see his granddaughter to the delay in the letter being sent, as ultimately, the court was able to consider the letter as part of its decision.
Cafcass’ second complaint response
44. Mr E complains that Cafcass’ complaint response, dated 12 December 2020, ignored the additional points he raised on 2 December 2020. He says these should have been addressed before Cafcass ended its complaints process. He is also unhappy with Cafcass’ response in relation to his request that the section 7 interview should be conducted by a male, and a father, in the interests of gender balance and fairness.
45. In its response, Cafcass explained that it had responded to Mr E’s email from 2 December on the same day and explained that its complaints procedure does not re-investigate matters already investigated, and therefore it would not be addressing any matters that had been addressed previously in its new investigation. Cafcass said it would look through Mr E’s email in detail to ensure there are no new points that have not already been addressed. Cafcass also explained that it was aware of Mr E’s request for a male FCA, however, it would struggle to accommodate this request due to there being so few available. It said that case allocation is not based on the gender of the staff member, and all FCA’s are experienced social workers who are able to undertake the work requested of them by the court.
46. Cafcass’ complaints procedures says: ‘As Cafcass seeks to resolve the issues promptly, the complaints procedure consists of only one step. Cafcass will not reinvestigate repeated complaints about the same issue’.
47. We have seen Mr E’s email from 2 December 2020. While he provides more information regarding his previous complaint, specifically in relation to the safeguarding letter, and why he is unhappy with Cafcass’ response, we do not consider that he raised anything new that could be addressed through Cafcass’ complaints procedures. Cafcass clearly explains in its complaints procedures that it will not re-investigate complaints. Cafcass also made this clear to Mr E on 2 December 2020.
48. We are satisfied that Cafcass acted in line with our Principles of Good Complaint Handling and Good Administration, quoted in paragraphs 28 and 33. This is because it has acted in accordance with its own complaints procedures and provided a clear explanation for why it would not be re-investigating his previous complaint. We do not consider that there are any indications of maladministration here. However, we do understand and appreciate that this process was frustrating for Mr E.