The Pathfinder Pilot in practice: “More radical, and far more successful, than even its most ardent supporters would have anticipated”?

These were the words of the President of the Family Division, and Head of Family Justice, Sir Andrew McFarlane in A View from the President’s Chambers: July 2024. 

What is the Pathfinder Pilot? 

The Pathfinder Pilot (Family Procedure Rules (FPR) 2010, Practice Direction 36Z) is a trial framework for the management of private law children cases (Section 8 of the Children Act 1989 and enforcement applications) in place of the Child Arrangements Programme (CAP) (FPR 2010, Practice Direction 12B). 

Pathfinder is intended to offer an investigative, early intervention and problem-solving approach to private law children cases. Key aims include an increased use of non-court dispute resolution (NCDR), better court experiences, prioritising the voice of the child and improved information sharing between agencies. 

The Pilot was launched in February 2022 in Dorset (Bournemouth and Weymouth) and north Wales (Caernarfon, Mold, Prestatyn and Wrexham). It was rolled out to southeast Wales (Blackwood, Cardiff, Merthyr Tydfil, Newport and Pontypridd) from April 2024 and to Birmingham from May 2024. 

What is the procedure? 

The stages within the Pathfinder Pilot are set out in Practice Direction 36Z. It became clear during the visit to Bournemouth Family Court that in practice there have been some pragmatic adaptations to ensure the Pilot’s effective execution. For guidance as to how it operates in southeast Wales see In the Matter of Child A and B [2024] EWFC 284 (B) [39 to 57]. 

Information gathering and assessment

In place of a Children and Family Court Advisory and Support Service (CAFCASS) or

CAFCASS Cymru safeguarding letter, the Pathfinder Pilot involves the court directing completion by a multi-agency panel of a more in-depth Child Impact Report (CIR). This will be authored by CAFCASS or a Welsh Family Proceedings Officer (or, if appropriate, a local authority officer) and will include safeguarding checks; parental engagement; indirect or direct engagement with the child or children (depending on their age and maturity); a domestic abuse, stalking, harassment and honour-based violence (DASH) risk assessment (if appropriate); and the consideration of other relevant matters. The procedure at the outset for urgent cases has not changed as between CAP and the Pilot such matters will be dealt with as presently, with the new procedure to follow thereafter. In Dorset, this stage is generally referred to as ‘Gatekeeping 1’.  

Safeguarding gatekeeping appointment/case management

This takes place after the CIR has been completed and is dealt with on paper. The CIR will inform the court as to the issues in the case and advise on the necessary steps to enable the application to proceed, including issues to be determined, whether there is a need for a finding of fact hearing and whether interim child arrangements are required. In Dorset, this stage is generally referred to as ‘Gatekeeping 2’. It appears from In the Matter of Child A and B [2024] EWFC 284 (B) that southeast Wales operates a ‘twin-track’ approach. In that decision, the case was allocated to the ‘adjudication track’ because of its ostensible suitability for settlement by agreement and the limited issues for determination. Parties retain a right to apply to set aside any such order pursuant to FPR 2010, rule 4.3, in the usual way.  

Interventions and/or decision hearing

In many cases, this will be the first opportunity for the parties and their representatives to attend a hearing. The court can consider whether final orders should be granted, an activity direction made, the parties directed to a NCDR process or whether directions are required to timetable the application for a ‘decision hearing’. A real benefit of the Pathfinder Pilot, observed in action at the Bournemouth Family Court with great success, is the scope for a tribunal (which involve magistrates) to take a proactive case management approach, with a view to encouraging agreement by judge-led conciliation (similar to the approach by family drug and alcohol courts). 

There is provision for a review stage by means of a hearing that takes place between three- and twelve-months post-order to review how it is working. Rather than compliance, the focus is intended to be on the safety of the parties and child and the need for any post-order support. Again, whether reviews are listed is entirely discretionary. They are not happening in Dorset.

What is the feedback?

Back in April 2023, following the initial launch of the Pilot, the Nuffield Family Justice Observatory hosted a discussion between HHJ Simmonds and HHJ Lloyd (DFJs for Dorset and North Wales, respectively).

A few examples of the key successes appear to include: 

• Praise from domestic abuse survivors perceiving the model to be less brutal or unkind.

• The conclusion of private law children matters far more efficiently, with cases dealt with more swiftly. If the Pilot is to be rolled out nationally, it will be interesting to see whether these successes are mirrored in larger centres, such as London, where there are currently substantial delays. No doubt the feedback from Birmingham will be informative.

• An increase in matters settling without proceeding to court, or early within proceedings due to the work that goes into the CIR and/or perhaps the use of NCDR. In April 2024, the Family Procedure (Amendment No.2) Rules 2023 introduced changes to the manner in which NCDR is treated in family cases. These changes (such as the broader definition of NCDR in FPR 2010, rule 2.3(1)(b), the changes to MIAM exemptions, the introduction of Form FM5 and broad case management powers under FPR 2010, rule 3.4(1A) and 4.1) will no doubt go hand in hand with the Pathfinder Pilot in appropriate cases.

What does the future hold? 

It is understood that the Pilot will be coming to a court near you, with the only question being when? News of whether there will be a national roll out or a more limited expansion is eagerly awaited. 

In the meantime, our experience was a very positive one. In the two cases we observed, HHJ Simmonds really did roll up his sleeves and final orders were agreed. At one point, when it seemed that a hearing would be required, a decision hearing date in about six weeks was found! There was a real sense from all the professionals involved that Pathfinder provides an opportunity to improve the way our system works for children and their families. Hopefully, it will receive the financial resources that it requires and deserves.