Has the Recent Cafcass Judgment Highlighted a Safeguarding Catch-22 in the UK Family Court for Domestic Abuse Victims?
- Sabina Challenger
- Jul 29
- 5 min read
What happens when families need specialist assessment before the court recognises the need for one?
Two recent family law decisions have prompted important discussions about the role of expertise in family proceedings.
The first is Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam), a decision of the President of the Family Division, Sir Andrew McFarlane. More recently, the principles from this case have informed wider discussions and proposed reforms concerning the instruction of expert witnesses in family proceedings. During those debates, Dr Charlotte Proudman, acting as counsel, advanced arguments about the dangers of unregulated experts determining matters such as parental alienation arguments that have contributed significantly to the ongoing legal and policy discussion surrounding expert evidence in the Family Court.
The second is the recent Family Court decision in A Father v A Mother before His Honour Judge Willans, where a Cafcass Family Court Adviser was criticised for producing a welfare assessment that departed from the factual findings already made by the court. The judge emphasised that Cafcass could not substitute its own assessment of 'disputed' allegations for findings that had not been established by the court.
At first glance, these cases appear to be about very different issues. One concerns the use of expert witnesses. The other concerns the role of Cafcass.
However, together they raise a much bigger safeguarding question.
As a mental health social worker and the founder of It's My Family, I spend much of my time thinking about safeguarding, risk assessment and how children can be better protected within the family justice system.
Throughout my career as a social worker, I have completed countless safeguarding assessments. One thing those assessments have consistently taught me is that safeguarding is rarely straightforward. At the beginning of an assessment, one picture often presents itself. As trust develops, further conversations take place, information is gathered from schools, health professionals and other agencies, and family dynamics become better understood, that picture frequently changes.
Sometimes the level of risk reduces. New information provides reassurance and concerns can be safely ruled out.
But sometimes the opposite happens.
Sometimes the more we understand the context of a family's experiences, the more clearly patterns of harm begin to emerge. It is not always because entirely new evidence has appeared. More often, it is because existing information begins to make sense when viewed collectively rather than in isolation.
That is the very nature of safeguarding. It is dynamic. It develops. It requires professional curiosity and an openness to continually reassess what we think we know.
It is also the reason why these recent judgments have caused me to reflect.
Today, through It's My Family, I support parents to understand safeguarding concerns, identify patterns of harm and communicate those concerns effectively to Cafcass and the Family Court. Many parents I work with know that something is wrong but struggle to find the language to explain what they and their children have experienced. This is particularly true in cases involving coercive and controlling behaviour, emotional abuse and psychological harm, where the pattern is often far more significant than any individual incident.
That experience has led me to ask an important question.
Where families struggle to communicate safeguarding concerns clearly at the outset of proceedings, how does the court identify the need for a safeguarding assessment? And if safeguarding experts such as CAFCASS develop a different understanding of risk as their assessments progress throughout the court case, how should the family justice system respond?
Safeguarding is not a snapshot
As social workers, we are taught that safeguarding is a process, not a single event.
Risk assessments are dynamic. They evolve as information emerges, relationships develop, and professionals begin to understand family dynamics in greater depth. It is often only through observation, repeated conversations and careful analysis that patterns of coercive control, emotional abuse or psychological harm become apparent.
This is particularly true in family proceedings.
Victims of coercive and controlling behaviour frequently struggle to describe what has happened to them. Abuse becomes normalised. Individual incidents appear insignificant in isolation. Children may communicate distress through behaviour rather than words. Families often know something is wrong but cannot always explain why.
This raises an important question.
If families are unable to communicate safeguarding concerns clearly at the outset of proceedings, how can the court recognise that further safeguarding assessment is needed?
The circular problem
Family judges must make decisions based on the evidence before them.
If the available evidence does not persuade the court that safeguarding concerns exist, the court may conclude that there is no need for further specialist assessment.
Yet, in many cases, it is that specialist assessment which helps families identify, understand and communicate the abuse they have experienced.
In other words, families may need expert assessment to explain the very concerns that would justify expert assessment in the first place.
This creates what feels like a safeguarding Catch-22.
Without sufficient evidence, there may be no further assessment.
Without further assessment, sufficient evidence may never emerge.
What happens when safeguarding concerns develop?
The recent Cafcass judgment raises another important question.
Imagine that a Cafcass Family Court Adviser begins an assessment in accordance with the court's findings. Over time, however, they observe interactions, speak with the child, review additional information and begin to identify safeguarding concerns that were not previously apparent.
This is not unusual.
In safeguarding practice, our understanding of risk frequently changes as assessments progress.
Professional curiosity requires us to remain open to new information and to revise our analysis where appropriate. Emerging risk is not evidence of poor practice; it is often evidence that the assessment is doing exactly what it is intended to do.
But what happens if that emerging assessment appears inconsistent with the court's earlier findings?
Does the social worker ignore those concerns because the court has already determined there was insufficient evidence?
Or does the social worker fulfil their professional and ethical responsibilities by bringing those concerns before the court?
This is not simply a legal question.
It is also a safeguarding question.
Social workers are professionally accountable for identifying and responding to risk wherever it becomes apparent. Their regulatory standards require them to act in the best interests of children, exercise professional curiosity and continuously assess risk. If the picture begins to highlight missed or new safeguarding concerns, professionals cannot simply disregard them because they were not apparent at an earlier stage.
At the same time, the court must preserve the integrity of its fact-finding process.
It is here that the tension lies.
Perhaps the conversation needs to change
For me, these recent cases highlight something much bigger than the role of experts or Cafcass.
They expose the gap between fact-finding and risk assessment.
Fact-finding asks whether there is sufficient evidence to determine that an event occurred.
Safeguarding asks a different question: what is happening for this child, what risks are emerging, and what might they mean for the child's welfare?
Those are not always the same exercise.
Perhaps the family justice system should now be asking whether families are being given enough support to identify and communicate hidden forms of abuse before key decisions are made.
If victims of coercive control cannot yet explain the pattern of abuse they have experienced, how can judges be expected to recognise that specialist assessment is needed?
And if safeguarding professionals identify risk as their assessment develops (as safeguarding assessments are designed to do), how should the judicial system respond?
These are not criticisms of the judiciary, nor of Cafcass.
They are questions about process.
Because if safeguarding depends upon recognising patterns that only emerge over time, we should ask whether the current system allows those patterns enough opportunity to become visible to professionals.
Cases discussed
Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam).
A Father v A Mother (Family Court, HHJ Willans, July 2026), concerning the role of a Cafcass Family Court Adviser following judicial fact-finding.
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