Pathfinder Pilot expansion: amplifying children's voices in family court

Family lawyers have eagerly awaited the expansion of the Pathfinder Pilot in May 2024, a pioneering scheme initially launched in March 2022. Originally rolled out in select Family Courts in Dorset and North Wales, the pilot aims to enhance early-stage proceedings by improving information sharing among the police, local authorities, and the courts.

The revised process was designed to focus on improving the experiences and outcomes of survivors of domestic abuse going through the Family Court system, including children.

One of the key elements of the scheme is to ensure that children are listened to at every stage (including in the early stages) of the family justice system when their parents are going through separation.

A review conducted by the Nuffield Family Justice Observatory recently revealed that when separating parents use the Family Court to reach child arrangements, almost half of the children are not formally asked about their thoughts and feelings on the arrangements being made concerning them, despite these arrangements being likely to have long-lasting impacts on their lives.

In addition, the age of the child was not found to be relevant, and even older children and teenagers were often left out of key decisions about their upbringing.

The Pathfinder Pilot, when launched in spring 2022, introduced more detailed initial investigations and information gatherings, including by Cafcass. In most cases, this has involved speaking to the children involved before a first hearing took place.

It has also worked to introduce a better integration system between the relevant agencies, including organisations specialising in mediation, or domestic abuse organisations, and the courts.

From its implementation, Pathfinder had four central desired aims:

1. Improve the outcomes for all Family Court users, including parents and children who are or have been victims of domestic abuse, ensuring that the voice of the child is central
2. Reduce trauma for victims of domestic abuse, whether children or parents, that might be experienced during proceedings. Encourage, where appropriate in the circumstances, pre-court and non-court-based dispute resolution approaches
3. Coordinate and integrate responses to domestic abuse, including improving information sharing between third party organisations and the court
4. Improve the court process by effective resource targeting and reduce rates of order breakdown and return to court particularly within criminal and family domestic-abuse related proceedings.

An overview of the process

The new model has trialled, over the past two years, a process that centralises the voice of the child in Family Court proceedings, through investigative methods and efficient and effective information sharing between relevant authorities and the court.

This has included an initial early ‘gatekeeping’ hearing to look at the information. Cafcass have then investigated any potential welfare issues, and identified whether a non-court-based resolution process would be suitable for the family.

Cafcass have also engaged directly with the family and identified any domestic abuse cases. Where appropriate Cafcass also met with any children early on to understand their wishes and feelings.

Other organisations were drawn into this process, including mediators and local authorities.

By adopting a more multi-agency, holistic approach, Pathfinder aimed to ensure the welfare of children, and ultimately reduce the number of cases coming back to court. This is part of a wider drive by the Ministry of Justice to lessen the pressure on the court, as well as a shift in the culture of the family justice system, keeping the voices of children central to decision-making processes.

Expansion

In the government’s response to the Private Family Law Early Resolution Consultation (26 January 2024), they recognised both the short and long-term consequences of parental conflict during separation on children. Providing parents and carers with early support and information can help to speed up resolutions, and, where safe to do so, keep matters out of court.

Where matters do end up in court, the government committed to expanding the Pathfinder pilot to two further locations, Birmingham (including Solihull), and South-East Wales, from May 2024, before it is rolled out nationally.

Insight into the initial pilot scheme is positive, according to government reports. The Child Impact Report, which is a key element of the investigative approach, helps to focus down on the needs of the child and their wellbeing. It is hoped that as the scheme expands, these results will improve further and ensure the voice of the child is heard.

Changes to the Family Procedure Rules

Change is afoot across the system, with the expansion of the Pathfinder pilot, but also the imminent updates to the Family Procedure Rules (FPR). The Ministry of Justice are pushing for a genuine cultural and organisational shift in the way the family justice system works.

From the end of April 2024, there will be additional expectations placed on couples and families going through separation and divorce, as well as on practitioners and the courts themselves, to continually examine whether non-court dispute resolution is suitable.

For some cases, where domestic abuse or other risk factors are present, court is likely to be the safest option for all parties involved.

However, where non-court dispute resolution (NCDR) is appropriate, the court will have enhanced powers to stay proceedings to allow parties time to explore NCDR options, with cost sanctions imposed for those who refuse without valid reason (in money cases).

In children and money cases alike, parties will be required to set out their views on using NCDR in open correspondence that is placed before the court. It is hoped that the focus on out-of-court resolution will lessen the adversarial nature of familial breakdown and reduce the short and long-term impacts on the children involved.

Child inclusive processes: are these the future?

So, is a child-inclusive system the future of family justice?

Involving children in the decisions about their future when their parents separate is a growing interest, both within court proceedings and outside of court.

Child-inclusive mediation is sometimes used as a way of including the child in the decisions, finding out their thoughts and feelings and allowing their voice to be heard. Although not mandatory, the government has suggested that children over 10 years old should have access to a child-inclusive mediator where discussions about their future are being had.

Jacky Tiotto, Cafcass CEO, spoke at length on the role of children in the family justice system in her talk for the Bridget Linley Memorial Lecture in March 2024. Notwithstanding the age, stage and ability considerations, the system should be listening to children, and this should be done before the first hearing.

Early evidence has suggested that taking this approach will likely mean that cases are resolved more quickly, and with fewer hearings. Parents are also feeling heard through the early investigations that take place. Critically, with cases where there is known or alleged domestic abuse, there are specialist agencies available to advise and support the court process from the outset.

Conclusion

The expansion of the Pathfinder Pilot should be welcomed by family practitioners. More families will begin to benefit from the process which involves other organisation and agencies and more effective information sharing with the court.

It is hoped that, with the second stage of the pilot, the problem-solving approach to child arrangement matters will continue to benefit children and cases involving or at risk of domestic abuse, and reduce the pressure on the court by increasing the number of cases that are resolved outside of the court process.

Rachel Fisher is a partner at Stowe Family Law