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The role of CAFCASS within private Children Act proceedings

Children disputes involving private law proceedings and CAFCASS have increased. However, many parents are unclear about the role of CAFCASS.

Children disputes involving private law proceedings and CAFCASS have steadily increased year on year since 2016, with 40,504 cases referred to CAFCASS in 2016-17 and 45,415 in 2019-20. Figures for 2020-21 are not yet finalised.

Given the rise in proceedings, many parents are unclear about the role of CAFCASS. We answer some common questions below.

What are private proceedings?

These are applications made under section 8 of the Children Act 1989 by individuals.

Where someone seeks an order in respect of a child who is in the care of the local authority it will be considered a public law matter.

Certain categories of people are entitled to make an application under section 8 of the Children Act 1989 without having to seek permission from the court first and other categories have to apply to the court for permission to issue an application for a child arrangements order.

What does CAFCASS mean?

CAFCASS stands for “Children and Family Court Advisory and Support Service”.

What is a Family Court Adviser?

A “Family Court Adviser” is what CAFCASS call their social workers.

What does a Family Court Adviser do?

According to the CAFCASS website, Family Court Advisers work directly with vulnerable children and families to advise the family courts on the best course of action for the child/young person.

Family Court Advisers work with local authorities, parents, relatives and the courts and demonstrate an understanding of what the child needs, wants and feels.

They provide case analysis and recommendations to the court.

Is this the same as a children’s guardian?

No, a children’s guardian is a CAFCASS officer, but they are appointed to represent a child in proceedings and they appoint a solicitor to represent the children.

If a child is of sufficient age and understanding they can instruct a solicitor direct to represent their views.

What is a Section 7 report?

A “Section 7” report refers to section 7 of the Children Act 1989 which provides that “a court considering any question with respect to a child under this Act may ask an officer of the service or ask a local authority to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report”.

The court can request a Section 7 welfare report which will inform the court of the child’s wishes and feelings and will make a recommendation based on what they think would be in the best interests of the child.

Are Section 7 reports ordered in every case?

No. the court will only order a report if it considers it to be necessary taking into account the individual circumstances of the case. They are more commonly completed where there are welfare concerns or if the family have been previously known to social services or the police.

Who decides if a Section 7 report is needed?

CAFCASS will complete initial safeguarding checks in all cases upon receiving a copy of the court application which includes checks with the police and local authority to see if the family are known to services. They will also comment on other previous family proceedings.

CAFCASS will either recommend a Section 7 report is completed, they might ask for further information before deciding or they may be silent on the matter. The court ultimately has the final decision but they will be guided by the recommendations of CAFCASS.

Will I receive a copy of the initial safeguarding checks?

No, you will not receive these. They are checks undertaken by CAFCASS who will record the information in a safeguarding letter.

What is a safeguarding letter?

This is the letter prepared by CAFCASS to the court following receipt of the application and following their safeguarding enquiries. It makes initial recommendations to the court following discussions with both parties. Recommendations might include parents attending a separated parents’ information programme, attending mediation, disclosure of local authority records/police records/medical records for parents/child(ren), parents to prepare written statements, a letter/report from the children’s school/therapist/CAMHS, preparation of Scott Schedules and Statements with a fact finding hearing to be listed, or a Section 7 report.

Will I receive a copy of the safeguarding letter?

Yes, if CAFCASS consider it is safe for both parents to receive a copy. If they are concerned about how one parent might react, especially if one parent is alleging they have received abuse/violence at the hands of the other parent, then CAFCASS reserve the right not to send the letter to the parties but to send it direct to the court.

When will I speak to CAFCASS?

CAFCASS should speak to you prior to completing their safeguarding letter so that they can put forward your views/concerns in their letter to the court. After they have tried to reach you they will not keep attempting to contact you, so it is important if you miss their call that you make contact with CAFCASS to make your views known.

Is COVID-19 preventing CAFCASS from working?

No, CAFCASS have just published guidance which outlines the arrangements being made for Family Court Advisers to see children, families, work in offices and attend court. This guidance includes the following:

  • That at least one in-person meeting with the child(ren) should take place at least once during the course of proceedings
  • Offices will remain open for in-person visits and other work purposes
  • There will be cases where it is necessary for advisers to attend court in person, but there is also the option of a hybrid hearing where the adviser attends remotely when they are not giving evidence

What should CAFCASS consider before completing the Section 7 report?

The Family Court Adviser will speak with any children (dependent on age), parents/guardians, and may speak to the children’s school. They may seek disclosure of records such as GP records, social services records and police records. There might be statements filed by the parties involved within proceedings to consider.

They have to have regard to section 1 of the Children Act 1989 which includes the welfare checklist.

At what age will CAFCASS speak to my child?

There is not a ‘one size fits all’ answer to this question. The CAFCASS officer will consider whether it is appropriate to ask the child direct questions given their age. Often with younger children CAFCASS will engage the child in play to try and ascertain their views without asking them directly who they’d like to live with and spend time with, which can be confusing for young children.

What is the welfare checklist?

When the court considers any matter relating to the upbringing of a child they have to consider the welfare checklist as part of its framework to reach a decision and so CAFCASS should also consider these matters within any report:

  • the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
  • their physical, emotional and/or educational needs;
  • the likely effect on them of any change in their circumstances;
  • their age, sex, background and any characteristics of theirs which the court considers relevant;
  • any harm which they have suffered or are at risk of suffering;
  • how capable each of their parents (and any other person the court considers the question to be relevant) is of meeting their needs; and
  • the range of powers available to the court in the proceedings.

What happens once a Section 7 report has been prepared?

It will be sent to all parties to the proceedings and to the court so that you will have the opportunity to digest the contents before any next court hearing. Often the court will list the matter for a dispute resolution appointment to see if agreement can be reached between the parents. If agreement is possible a court order will be drawn up at that hearing. If it is not possible then the court will probably list the matter for a final hearing where the judge will decide the outcome.  

Can a judge go against the recommendation of CAFCASS?

Yes, it is unusual but not impossible. Ultimately the judge has the final say in any case and if they believe that CAFCASS have not considered the matter properly or not given appropriate weight to certain factors, they can make a decision which contradicts that of CAFCASS.

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