Will a judge go against a CAFCASS report?

In a recent article, I examined the role of CAFCASS and how in family proceedings their officers – officially styled ‘Family Court Advisers’ – are treated as the experts when it comes to children and their needs. Now, I will consider a common question I encounter – will a judge go against a CAFCASS report?

To answer this question, it’s first necessary to understand the legal principles involved in any proceedings relating to children.

Children Act presumptions

The Children Act requires the court to presume that the involvement of each parent in their child’s life will further the child’s welfare unless there is evidence to suggest that the “involvement of that parent in the child’s life would put the child at risk of suffering harm”. ‘Involvement’ is defined in this context as “involvement of some kind, either direct or indirect, but not any particular division of a child’s time”. There is therefore no automatic right to contact between a child and a parent.

Risk of harm child protection

It’s CAFCASS’ role to assess whether there is any risk of the child suffering harm should contact take place. CAFCASS does this by:

• finding out whether there is any previous or current involvement with the family by social services or the police;
• talking to the parents, and talking to and possibly observing the child who is the subject of the proceedings.

CAFCASS will serve its report on the court and the parties in the case. The judge will use this report, along with other evidence in the case such as the parents’ witness statements, and information from the police and social services (if relevant), to determine whether contact should take place.

As CAFCASS officers are the accepted experts in children matters, the court will usually follow their recommendation for contact, or for a child to live with a parent. But that does not always happen. The court must consider all the evidence of the case, and having regard to the welfare principle and any risk of harm, the judge may decide to make a different order.

Do CAFCASS favour mothers?

I often find fathers saying that CAFCASS favour mothers. But it’s not unusual to find mothers saying the opposite. CAFCASS are independent in that they are not part of the family court or of social services. In making enquiries, however, they will speak to local authority social workers, teachers and other professionals, where relevant.

The issues go way beyond which parent the child should live with, extending to the frequency and duration of contact with the other parent, holiday arrangements, and decisions concerning such diverse matters as education, medical treatment and cultural or religious issues. The ideal situation is for a child to have a consistent and healthy relationship with both parents, with the parents putting aside any personal differences to achieve this. But that is far easier said than done, and perfect co-parenting relationships are rare.

While parents will inevitably have differences of opinion, it’s in everyone’s best interests, particularly the child, to agree on as much as possible, even if that means some degree of compromise by both parents. That will help to narrow the issues for CAFCASS and the court to consider, and ultimately, is likely to result in a more stable long-term arrangement.

Disputing a CAFCASS report

It is possible to challenge a CAFCASS report. Remember, a judge does not have to follow their recommendations, although that is unusual because they are treated as experts.

As a parent or other interested party, before seeking to challenge any recommendation by CAFCASS, it’s strongly recommended that you take legal advice on your options and the best way to approach a challenge. Depending on the circumstances, the best approach might be to:

• ask for an addendum to the CAFCASS report to be prepared, dealing with issues not covered in the original report;
• ask the court for permission to instruct an expert;
• ask the report’s author to attend the final hearing to answer questions on the nature and extent of their enquiries and their recommendations.

In practice, challenging the findings and recommendations in a CAFCASS report is not easy. Sometimes a subtle approach works best, perhaps focusing on whether the CAFCASS recommendations really are in the child’s best interests.

CAFCASS advice for mothers

It’s a common misconception that CAFCASS can offer advice. However, they are necessarily neutral family court advisors. As such they cannot offer legal or other advice to either parent. Also, as you would expect, confidentiality means they cannot disclose information or give advice to non-parties.