CAFCASS
What do the letters CAFCASS stand for? The Children and Family Court Advisory and Support Service (CAFCASS). What is CAFCASS? CAFCASS is an organisation which looks after the welfare of children involved in Family Law proceedings. A CAFCASS Officer (also called Family Reporter or Family Court Advisor) is trained in social work but independent from Social Services. They carry out a number of different duties including mediation, investigation into family circumstances, make recommendations to the Court and may assist the family if ordered to do so by the court. What are the standards which CAFCASS should adhere to? CAFCASS works to standards set out in a document called the Service Principles and Standards. What recommendations might a CAFCASS Officer make? If ordered to carry out an investigation and report, recommendations might include: · which parent the children should live with · arrangements for contact with the non-resident parent · the type(s) of Order which the CAFCASS Officer considers relevant to the family circumstance. The Judge will normally direct CAFCASS to investigate certain issues related to the applications that the parents (or possibly others such as grandparents) are making. In some circumstances, a Judge may leave this to the CAFCASS Officer to decide which issues are relevant. When writing a report, the CAFCASS Officer should be mindful of the Welfare Checklist. The Welfare Checklist is set out in the main legislation which covers family law, The Children Act 1989, and sets out the matters which should be considered by the court when making decisions which affect a child's upbringing. These include: (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question. Why would CAFCASS become involved in my court case? In private Family Law proceedings, CAFCASS would become involved for one of three reasons: 1. to provide a mediation service to the separating parents in an attempt to find agreement without the need for the Court’s involvement. 2. when the Judge wants an independent and objective assessment of the family’s situation and there are welfare issues to be considered. 3. When a Judge makes a Family Assistance Order setting out that CAFCASS should assist the parties and the children for up to 12 months to help facilitate any other orders made. This commonly relates to such things as helping assist with contact difficulties. How important is the CAFCASS Officer’s recommendation to the Court? While the Judge ultimately decides what will happen to the children, if asked to report, the CAFCASS Officer’s recommendation will carry a great deal of weight, especially since the Judge will consider their opinion to be impartial and focussed on the children’s needs. For this reason it is important to familiarise yourself with their role and the standards they are supposed to adhere to. When CAFCASS have concluded an investigation, they will write a report for the Judge. This report could include details of the family’s circumstances, the wishes of the parents and children and the CAFCASS Officer’s opinion as to the outcome which would be in the children’s best interests. In relation to the report, it is important to be aware of the standards that CAFCASS should adhere to. The CAFCASS Officer should: · set out all relevant information which the CAFCASS Officer has acquired through his or her enquiries, making clear from which source the information has been obtained and distinguishing between matters of fact and opinion. · make clear recommendations (or explain why recommendations cannot be made) which draw on relevant aspects of the Welfare Checklist. · explain the basis upon which those recommendations have been made, including reasons both for and against those recommendations. · consider all orders available to the Court when making a recommendation. Will the CAFCASS Officer treat what I say in confidence? If CAFCASS are asked to mediate between you and your ex-partner, then what you say during discussions with them is private. In the event that agreement isn’t reached (and the matter returns to Court for the case to continue), CAFCASS may be asked to continue their involvement by carrying anything said to this CAFCASS Officer by you during the course of the investigation out an investigation for the Court. In these circumstances a different Officer should be appointed from the one who facilitated mediation, and may be repeated. How will any investigation be conducted? That depends on the issues which the Judge has asked CAFCASS to investigate. The investigation may include visits to both parents homes, discussions with relatives and family friends, and discussions with the family GP and the children’s school. Be aware that, if CAFCASS are asked to contact your GP, they should not be commenting on medical matters such as mental health. The OFSTED Inspection into East Midlands CAFCASS in March 2008 was critical of CAFCASS Officers having made comments on areas outside of their field of expertise or training. Do I have a right to see the report? Yes. It is not unheard of for solicitors to mistakenly refuse to give their clients a copy of a CAFCASS Report, citing confidentiality as the reason. If this happens to you, ask them to read sections 4.13(1) and 4.23(a) of the Family Proceedings Rules 1991 and do not hesitate to demand a copy and make a complaint to the head of your solicitor’s practice if he/she continues to refuse. Will I see a copy of the report before the Court hearing? The CAFCASS Officer has a duty to provide the parents and children with as much information as possible regarding the proposed report content and recommendations. At the hearing where the Judge instructs CAFCASS to carry out an investigation, the Judge will set a timetable which should detail when the report should be filed with the Court and sent to each parents’ solicitors. Court rules state this should be at least fourteen days before the hearing where the recommendations of the report will be considered. If you have not received the report by the date set out in the timetable, contact the Children and Family Reporter as a matter of urgency and discuss the delay with your solicitor if you have one. Ensure you have sufficient time to consider what the CAFCASS Officer has said in their report. If you feel you have not, be prepared to ask the court in writing to adjourn the hearing (when the report would be considered) to a later date. Depending on the circumstances, you might also consider writing a letter, addressed to the Judge, setting out that the report has not been filed in time, and that due to the delay, you will have insufficient time to consider the report’s contents. In such circumstances, you may wish to ask the Judge to adjourn the hearing (set to consider the report). What happens if I disagree with the findings and recommendations of the report? If there are inaccuracies in the report, write to the CAFCASS Officer without delay asking for the report to be corrected. A common mistake that parents make is to believe that a CAFCASS Officer is being critical of them, when the Officer is simply repeating allegations that the other parent has made. Your opportunity to defend against the other party’s allegations, should they be sufficiently serious, should come in court. If you disagree with the recommendations within the report and/or find it contains factual inaccuracies, you are likely to want to make the court aware of this, and cross-examine (question) the CAFCASS Officer in court. The Officer will normally only be attending court if directed to do so by the Judge. If there are aspects of the report which you disagree with, you should consider asking the Judge to direct that the CAFCASS Officer attend court for this purpose. You also may wish to enter a ‘Position Statement’ into court upon receipt and consideration of the report, but before the next hearing. In this, you might choose to set out what parts of the report (if any) cause you concern. Briefly set out those concerns (or alternatively comment that you are in agreement with the CAFCASS Officer’s recommendations) and hand your Position Statement into the court administration department. Also deliver it to the other party and CAFCASS, ideally 48 hours before the next hearing. This pre-warns the Judge of any issues which may need to be considered and allows time to consider your ‘position’ on their report. While technically, any statement should be requested by the court, in practice, most Judges are appreciative of being pre-warned of any issues which may arise at a hearing. Be aware though that on rare occasions, a Judge may refused to accept the Position Statement if he did not direct that the parties should prepare one. The key is to keep a Position Statement short, ideally to a couple of pages. Do not assume that any statement has been read prior to walking into court, as time pressures on the judiciary sometimes prevent this. Make sure you raise any issues verbally as well. How long does a CAFCASS investigation take? Delays are commonplace, and the President of the Family Court in association with CAFCASS and the Department for Children Schools and Families recently set new guidance regarding timetables: a. wishes and feelings report in not more than 6 weeks. b. a single issue report in not more than 6 weeks. c. a report covering more than one particularised issue in 6-12 weeks, depending on the nature/complexity of the issues to be addressed. d. where an officer of the Service is required to make a risk assessment under s.16A Children Act 1989, in 6-8 weeks. Be aware that in some areas, reports are taking in excess of 20 weeks, and in the worst cases I am aware of reports taking more than 40 weeks due to backlogs. What other organisations might prepare a welfare report for the Court? A Judge may sometimes request that the charity, the National Child Advocacy Service prepare a report for the court as an alternative to CAFCASS. NYAS is generally well regarded by the courts and families. If Social Services have previously been involved with your family, the Judge is likely to wish them to write a report, or have CAFCASS or NYAS contact them to find out the circumstances of their involvement.
General Guidance when involved in Assessments and Investigations When being assessed, regardless of the agency carrying out the investigation, it is worth considering what you want the assessment to achieve. Your objective should be to provide the CAFCASS Officer with pertinent information that assists the Officer in making recommendations, and the Court in making an informed and fair judgment. It is normal to feel nervous about being evaluated and to be stressed about the Court case, as well as any allegations made, and to be confused about the reasons behind the allegations if they are untrue. Below are some things to consider before you meet the CAFCASS Officer. Do speak calmly and clearly. Do show willingness to take part in the evaluation. Do tell the truth. Do tell the Officer of any concerns you have with regard to your child. Do ensure you cover all the points that you feel are necessary. For your own benefit, write these down, prior to the meeting. Don't criticise your ex-partner as a person. If there are things they do which concern you, explain those actions and behaviours and how they impact on the children. Don't say you wish to stop your ex-partner from seeing your child. This will be harmful to your child. Risks can be addressed in other ways, and the Officer will wish to make their own recommendations. Don't make false allegations. Don't exaggerate. Don't lose your cool, become angry, or appear unreasonably emotional. Don't argue or be sarcastic with the Officer. | CAFCASS Policy The following link will take you to CAFCASS publications that will give you some insight into CAFCASS policy and what should be considered by CAFCASS Officers and parents when determining what arrangements are made for children following parental separation. ------------------------------------------------------------------------------------------------------------- CAFCASS NEWS August 2009: OFSTED Report into North Yorkshire and Humberside CAFCASS find services are inaqeduate. "Case planning, assessment, intervention, direct work, complaints handling, equality and diversity and the overall promotion of improved outcomes for children and young people are inadequate." ------------------------------------------------------------------------------------------------------------- July 2009: President of the Family Courts issues guidance on timescales for the production of CAFCASS Reports Press reports have detailed there being long delays in the production of CAFCASS reports. We are aware of individual cases where a welfare report has been ordered by the court (a section 7 Report) and it taking more than 40 weeks for the report to be written. The press articles highlight delays of up to eight months. The President of the Family Court, in partnership with the Department for Children Schools and Families and CAFCASS, has issued new guidance to help address the problems of delays and with the intention to reduce backlogs. While a worthwhile undertaking, the issue of CAFCASS's underfunding, and increased duties and cases remains largely unaddressed. CAFCASS delays have been commonplace for some time and the 2008-9 Annual Report accepts that the service is under considerable pressure. As reported in Community Care, this pressure has been increased by a 30% increase in private family law applications in the year to June 2009 and a surge in public law cases following the Baby P scandal. Excerpts from the guidance can be read below, or you can read the full guidance here. 9 In respect of new cases, the national expectation of the timeframe for the production of any specific report by Cafcass under s. 7 Children Act 1989 is (from the time Cafcass receives notification of the court order) as follows: a. wishes and feelings report in not more than 6 weeks. b. a single issue report in not more than 6 weeks. c. a report covering more than one particularised issue in 6-12 weeks, depending on the nature/complexity of the issues tobe addressed. d. where an officer of the Service is required to make a risk assessment under s.16A Children Act 1989, in 6-8 weeks. 10 The DFJ should formulate local arrangements to specify the timeframe for production of each type of report sought under s. 7 in respect of both new and backlog cases. It is accepted that local conditions are likely to require timeframes in excess of the national expectations (see 9 above) but, where this is the case, local arrangements should include a timed plan to eliminate backlogs with a view to eventual production of reports within the national expectation. It is expected that the plan will provide for the substantial reduction and, where possible, elimination of backlogs before the end of March 2010. 13 In every case, the filing date for a s. 7 report (as described at 9 above) directed by the court in accordance with the local arrangements shall be complied with unless proper applicationis made on exceptional grounds. Letters from individual officers of the Service notifying the court of non-allocation/non-compliance shall cease. Local arrangements may specify what steps are to be taken if directions are not complied with, to include avoidance of unnecessary costs, notification to the parties and standard directions as a consequence or in default. Standard directions should be designed to provide for automatic steps to be taken where there is non-compliance. ------------------------------------------------------------------------------------------------------------- 29.03.09 The Times: 'CAFCASS Chief Anthony Douglas called to account by Judge' - Frances Gibb TCM Comment: Delays to CAFCASS reporting are unacceptable. We've been aware of this for some considerable time, and forecast in January that things were likely to get worse due to the fallout from the Baby P case (a sudden rush by Local Authorities to place children in care after the number of applications had fallen due to a massive increase in court application fees from £150 to £4,875) and increased workload from the Children and Adoption Act 2006 (which came into force in December 2008) At the time of this article, the time taken by CAFCASS to provide a report was reported as: Bristol:26-34 weeks, Basingstoke:15 weeks, Southampton:16 weeks, Aldershot: 17 weeks, Bournemouth: 17 weeks or more, Gloucester: 20 weeks and no date now given in many cases, Portsmouth: up to 22 weeks, Trowbridge: 34 to 40 weeks. ------------------------------------------------------------------------------------------------------------- 05.08.08 Community Care Website: 'CAFCASS Chief Executive vows third damning Ofsted report this year will be the last' ------------------------------------------------------------------------------------------------------------- Ofsted’s Inspection of Cafcass East Midlands Key challenges and opportunities, Published January 2008, Reference 070205 x TCM Comment: Extracts from the report. The Custody Minefield's own comments are highlighted in red. A useful report by Ofsted which highlights errors and failings which may be experienced. 'FCA' in the text below stands for Family Court Advisor (another term for a CAFCASS Officer). 32. Inspectors found in private law reports that there were a number of key features which they assessed as inadequate. These features were: · Assessment – where the criteria by which assessments were made were unclear or unfair, particularly those assessments made through limited observation of contact between child and parent. If CAFCASS have expressed opinions about your child's relationship with you, how detailed were any observations. Were they carried out in a natural environment e.g. home, or a strange environment such as the CAFCASS Office. Was equal time spent observing the children with each parent. · Information excluded - where FCAs excluded key information about children, such as learning difficulties, or failed to consultother relevant professionals in relation to a child’s health, development or education. Fairly self explanatory. FCA stands for 'Family Court Advisor (CAFCASS Officer) · Information included – where this was unnecessary, inappropriate or made implications rather than explicit evaluations. Examples included reference to ‘spent’ convictions (which were not restricted) and inappropriate descriptions such as a child ‘having slightly lower than average ability’. 21 Inspectors consider that unless information is relevant to the best interests of children and young people and the proceedings it should not be put before the court. Fairly self explanatory. · Children’s wishes and feelings – where FCAs failed to include children’s views or feelings because of their age and without considering the child’s understanding or including reference to their feelings. It is worth noting that the Children's Act 1989 only provides for children's views being considered 'in the light of his age and understanding'. That said, the Ofsted inspectors provide an example of their disagreeing with CAFCASS regarding children's views, which is recorded under section 34 of their report and reads: – inspectors found examples of reports stating ‘the child is too young to express wishes and feelings’. In one example, a report for a four-year-old child included nothing regarding the wishes or feelings of the child. Another report included the following inappropriate comment about an 11-month-old child: ‘J is too young to appreciate the political significance of his circumstances’. · Evidence – where FCAs did not investigate thoroughly or did not provide evidence to substantiate allegations or assertions made in reports. Similarly, where reports used important terms without clarity such as asserting that ‘the children have clearly suffered emotional distress’ or that a parent ‘misuses drugs’ or ‘does not handle children well or consistently’. I'd add that terms such as 'domestic violence' need to be qualified. This term can encompass any controlling behaviour, from sulking or nagging to extreme physical violence. · Relevance – the relevance of reporting some statements was not clear. For example, ’their relationship commenced without their parents’ consent, although once their families learned of the relationship it was agreed they would marry.’ The report does not clarify why the issue of parental consent is mentioned at all. Another example concerned an 11-year-old girl: ’D has explained that she thinks she will shortly start her menstrual cycle. She will not talk to her father about this but has explained that she feels she has plenty of female adults around her whom she can talk to. D is prepared for her first period. She would appear to have no outstanding needs in this respect.’ Inspectors can see no reason to include such information in an application about contact. If your CAFCASS Report contains statements which are irrelevant to your case, consider asking for those comments to be removed from the final report (the correct term is 'you want the comments redacted' - inotherwords, crossed out with a big black marker pen). · Recommendations - where FCAs made recommendations that were reliant on optimism or had not been discussed with or agreed by the parties to the proceedings. Examples included suggesting specific contact arrangements or attending mediation or therapeutic interventions such as anger management courses. Don't be afraid to challenge the recommendations of the report if there is no evidence to support the CAFCASS Officer's opinion. · 'No order principle' - inspectors are concerned that almost all private law reports gave insufficient attention to the ‘no order principle’ and most did not give reasons why it was better to make an order in the case.22 Such practices mean that most reports contain recommendations to the court that fail to take account of a key principle of the Children Act 1989 that there should be minimum state intervention in family life. 'The No Order Principle' - The principle that a court will only make an order when necessary and if it is in the children's best interests. It is worth noting that some Judges still believe that Shared Residence Orders are only made when the parents are in agreement. If this were so, shared residence orders would never be made, since the no order principle would come into play. CAFCASS Officers can be similarly confused. · Welfare issues – where FCAs completed an investigation and wrote a report to court in cases where no welfare issues were identified. Statute indicates that Cafcass functions operate ‘in respect of family proceedings in which the welfare of children is or may be in question’.[23] Aside from providing a mediation service, CAFCASS should only be involved in your case if welfare concerns have been raised. · Expertise – where FCAs offered views outside their professional expertise such as in relation to mental health. Self explanatory, but worth noting is CAFCASS’s habit of asking parents to agree to their speaking to the family GP. This requires the parent waiving their legal privilege to confidentiality when the CAFCASS Officer is unqualified to express an opinion on medical matters. If there are concerns related to mental health, the family GP is not qualified to act in a role of ‘expert’ on matters relating to psychology. The appropriate action, on CAFCASS’s part if the Officer does have concerns about a parent’s mental health, or if such concerns were raised by the other party, would be to recommend that the court direct there be a forensic psychological assessment by a qualified expert. · Cafcass report template – where this was not used by FCAs. · Description – where the report described rather than evaluated information it did not differentiate fact from opinion and failed to give a reasoned assessment of the consequences of the options set out for the court. The CAFCASS Officer should clearly state what is a matter of opinion, and what is factual (and supported by evidence) References 20 The Children Act 1989 section 1(3) sets out what is known as the welfare checklist and includes ‘(e) any harm which he has suffered or is at risk of suffering’. The Adoption and Children Act 2002 section 120 extends the definition of harm within the meaning of the Children Act 1989 section 31 ‘including, for example, impairment suffered from seeing or hearing the ill-treatment of another’. 21 The Rehabilitation of Offenders Act 1974 determines which convictions and when they may become ‘spent’. 22 The definition of 'the no order principle' is provided in my comments after this endnote reference in the main text above. 23 Criminal Justice and Courts Services Act 2000 section 12 (1) |
