Swindon Family Lawyer, Catherine Smith, examines the role of CAFCASS in children proceedings. Catherine is available on 01793 615011. You can also contact her by email, or by completing the Contact Form at the foot of this page.
What is CAFCASS?
CAFCASS is an acronym for the Children and Family Court Advisory and Support Service, which is a non-departmental public body whose aim is to promote the welfare of children and families involved in proceedings in the family court. CAFCASS employees are social workers but are ‘court’ social workers, distinct from those employed by local authorities. In family proceedings, they are treated as the experts when it comes to the child, and a child’s needs, and are officially styled ‘Family Court Advisers’ (FCA).
CAFCASS acts independently of all parties in the case, including the mother and father of the child. CAFCASS will aim to find out what the child wants and needs, and inform the court and the other parties in the case of their findings.
How do CAFCASS find out what the child wants and needs?
CAFCASS will first look at the nature of the application made to the court, before checking whether the family has previously been involved with the police or social services. If so, they will request details. The case will also be screened for urgent child protection needs.
What questions will CAFCASS ask my child?
CAFCASS will contact the mother, father and child to find out more general information and for each of them to provide their views. Of course, the degree of the child’s involvement in this process is very much dependent on their age and level of understanding.
CAFCASS age 12 rule
There is a common misconception that CAFCASS have a firm rule on the opinions of a child aged 12 or over. While this is not strictly correct, it is broadly true to say that from about the age of 12, the court will generally take the child’s wishes and feelings strongly into account. However, the question the court will ask is how mature the child is, and therefore a child of say 8 years of age might be mature enough for their views to be taken strongly into consideration. The child’s views will be ascertained by CAFCASS and included in their report.
CAFCASS safeguarding letter
CAFCASS will use all of this information to produce what is called a CAFCASS safeguarding letter. In advance of the first court hearing, this letter is sent to the court, each parent, and anyone else who is a party to the case. The letter advises the court and the parties whether it is considered safe for the child to have contact with both parents at that point in time.
First Hearing Dispute Resolution Appointment (FHDRA)
At the first court hearing, the court will decide whether the child can have contact for the time being with their parent(s). The judge will also consider whether to make investigations into any allegations made by the parties, for example, allegations of domestic violence or harm to the child/children.
In deciding whether contact can take place the court will take into account the CAFCASS safeguarding letter. A representative of CAFCASS should also be available at the first hearing to answer any questions the court may have concerning the safeguarding letter.
The court can also request disclosure of documentation from the police and/or social services which may be used to help determine the veracity of any allegations that are made by a party.
Fact finding hearing family court
These are listed by the court when:
- allegations are made which are contested by one or more of the parties; and
- the allegations are relevant to the decision the court needs to make in respect of the child(ren); and
- oral evidence needs to be heard about those allegations.
Examples of such allegations are domestic or sexual abuse.
The ‘CAFCASS Report’ normally refers to a report which is carried out under section 7 of the Children Act 1989. At any time when considering any question in respect of a child, the court can order a report. Often, such an order will be made at the fact finding hearing. Common situations where a CAFCASS report may be ordered are where there is:
- a welfare issue requiring consideration as a result of an application made by a parent for contact;
- an application by a parent for a child to live with them;
- an application for a child to attend a particular school;
- an application for a child to be removed from the United Kingdom.
In producing the report CAFCASS will consider any police disclosure, witness statements of the parents and any social services documentation. But they will also take into consideration:
- what a child says or shows;
- what reliable and trustworthy adults say about the child’s situation;
- any physical evidence, such as signs of danger.
Ultimately, the recommendations CAFCASS makes to the court will be those which they believe minimise any risk to the child(ren).
As a result of the proceedings, a variety of things can happen. For example:
- The court may have accepted CAFCASS’s offer to support the child.
- The court might appoint a children’s guardian to act for them personally.
- A parent can be ordered to attend a Domestic Abuse Perpetrator Programme.
- Supervised contact sessions can be ordered, which if they go well can lead to unsupervised contact.
CAFCASS will limit their work to what is required to deal adequately with the case depending upon the needs of each case.
Section 1(1) of the Children Act 1989 says that in any proceedings relating to children, the welfare of the child is the paramount consideration. This is called the ‘welfare principle’ and it underlies the work of CAFCASS. In considering each and every case, CAFCASS and the court must have regard to the ‘welfare checklist’ contained in section 1(3) of the Children Act 1989. This includes the ascertainable wishes and feelings of the child (in light of their age and understanding) and any harm that they have suffered or are at risk of suffering.
For this purpose, ‘harm’ is defined “ill treatment or the impairment of health or development, including for example, impairment suffered from seeing or hearing the ill-treatment of another”.