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The Pathfinder Pilot - Is this the new way forward in Private Law Children Act proceedings?

View profile for Rebecca Pearson
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Since March 2022, the Pathfinder Pilot Scheme has been trialled in the family courts in North Wales and Dorset. The scheme was implemented to trial a more problem-solving approach, which is aimed to improve the court experience and outcomes for survivors of domestic abuse and to ensure that the voice of the child is the vocal point in proceedings. From 28 May 2024, the pilot will now be introduced to Birmingham Family Court as well as courts located in South Wales.

Standard Process v Pathfinder Process
The standard process only allows for CAFCASS or CAFCASS Cymru to undertake initial safeguarding enquiries to prepare a safeguarding letter to be provided to the court, which is followed by a First Hearing. However, a safeguarding letter only provides limited information to the court and therefore the hearing is usually adjourned to allow more time to gather the further information required.  

In contrast, the pilot approach focuses on the gathering information early on in the process whereby CAFCASS if they are already involved with a family are able to undertake a Child Impact Assessment. This assessment is more in-depth and allows engagement with the parents, the child and if appropriate other agencies such as domestic abuse agencies, police and the local authority. The process is non-adversarial and allows the issues of the case to be considered early on to help direct if the parties would benefit from out of court dispute resolution or whether an agreement can be reached without court intervention. If the parties do not reach an agreement, then the early process of gathering the necessary information allows the court to then make more informative decisions thereafter.

Stages of the Pathfinder Pilot in accordance with Practice Direction 36Z

Initial Gatekeeping: The Gatekeeper (Judge or Legal Adviser) will:

(1)          Issue directions on issue

(2)          Direct that the applicant or parties attend MIAM

(3)          Provide directions for an accelerated hearing if it is an urgent matter

(4)          Provide directions for the service and filing of evidence

Stage 1: Information Gathering and Assessment: The aim of this stage through engagement and assessment is to take a child welfare focussed approach and investigate the impact of the issues raised in the application upon the child. This stage includes the following steps:

  1. Completing a Child Impact Report (CRI) by investigating safeguarding checks, parental engagement, indirect or direct engagement with the child, a DASH risk assessment, and any other consideration of any other cases involved that are deemed relevant.
  2. Safeguarding gatekeeping appointment/case management following the filing of the CIR. The Judge may determine what are the necessary steps are to enable to application to proceed to stage 2, such as the key issues to be determined, need for a fact finding, interim arrangements required etc.

Stage 2: Interventions and/or Decision Hearing: The purpose of this stage is for the court to use their discretion on how to progress the application to proceed to a conclusion. This may include an activity direction, recommending that the parties enter into non-court resolution, considering the appropriate means to monitor/review an agreement made between the parties, or holding a Decision Hearing.

At a Decision Hearing, the court will investigate and make decisions on the issues that are not agreed, by ensuring that the parties focus is solely on the best interests of the child. The court will then exercise its discretion as to what order to make on the application, such as directions for the Review stage and to consider how the decision shall be communicated to the child. 

Stage 3: Review: The review stage normally takes place 3 to 12 months following when the order was made. The purpose of this stage it to allow the opportunity for the parties to be contacted including the child if necessary to ascertain how the order is working for them, with the focus on the safety of the parties and child, and any post-order support required.

The Nuffield Family Justice Observatory held a webinar in April 2023 where HHJ Gaynor Lloyd, Designated Family Judge for North Wales and HHJ Chris Simmonds, Designated Family Judge for Dorset discussed their experience of the Pathfinder Pilot, discussing the practicalities, challenges and successes of the pilot scheme.

HHJ Simmonds discussed the differences between the processes that he has observed. He said that in standard private law proceedings the court is a core part of this process, however in the investigative pathfinder pilot CAFCASS is at the core. In practice the pilot encourages family’s if appropriate to engage in out of court dispute resolution, however if this if the matter does proceed to court unless the case is complex the first hearings have been taken as final hearings, as the court have already been provided the information necessary to use their discretion to make an order.

HHJ Lloyd discussed the successes of the pilot, reporting that the pilot model has been universally popular to all those involved, and in particular the main feedback from domestic abuse survivors is that the model is much less brutal and unkind in contrast to their perception of the adversarial Family Law Proceedings. Domestic abuse survivors and perpetrators have reported that they feel supported through the process and after the matter has concluded during the review stage.

HHJ Lloyd said that they have also seen an increase of cases settling without the need of proceeding to court. HHJ Lloyd explained that the CAFCASS officer who is to complete the CIR will speak to both parents, then the child, to then feedback to the parents what the child said, this leads to reframing the parents’ mindset to the child’s interests and needs. The officer will then provide the parents with the likely recommendations, and this has seen an increase in the settlement rate at this stage.

HHJ Simmonds explained that the challenge that he has faced at the beginning of the pilot was the availability of resources, such as judicial and court staff. He explained that in practice if a court does not have the resources available then implanting the pathfinder pilot may be problematic and it is essential that they ensure that all resources are in place.

If you require specialist legal advice in relation to issues relating to child arrangements or any other issues, please contact the family team at Roythornes who will be happy to help.