A while ago we wrote a series of blogs about court procedure in the financial aspects of divorce and dissolution. You can find them here: disclosure, the first appointment, the FDR, and the final hearing. We thought it might be a useful complement to those blogs to write a few on the court’s role if it’s asked to sort out disputes about children – either about where they should live or with whom they should spend their time and when (now ‘child arrangements’ – formerly residence and contact, and before that (but not since the 1980s), custody and access), moving abroad, and specific issues such as choice of school or decisions about medical treatment.
These will not be posts about law, rather about court procedure and the process through which a case runs if it goes through the courts. We will start with a look at the role of CAFCASS – the Children and Family Court Advisory and Support Service. In the coming weeks we’ll set out the procedural steps through which a case goes if it goes to court, and where CAFCASS fits in.
As always, please bear in mind that you don’t have to go to court to resolve a dispute about children between you and the child’s other parent or carer. Mediation, collaborative law and negotiation – direct or through solicitors – are all viable options which work for parents in similar situations.
CAFCASS is a non-departmental public body accountable to the Ministry of Justice. It is funded through the Ministry but is independent of the courts, social services, education and health authorities and all similar agencies. The aim of CAFCASS is to be the voice of children in the family courts, and to help ensure that children’s welfare is put first during proceedings. CAFCASS officers are known as Family Court Advisers. They are specialist social workers.
CAFCASS principally works with children and families when private law court applications have been made about future arrangements for children, following parental separation, or when public law care applications have been made by local authorities, in relation to concerns that children have suffered or are likely to suffer significant harm. As we at CFLP work entirely within the sphere of private family court proceedings – that is, those where there are no concerns that the child is at risk of harm so serious that the local authority or the courts will intervene – we will concentrate on CAFCASS’s role within this area.
Within private law proceedings, the role of the Family Court Adviser is to try to help families agree arrangements for their children, and if that is not possible, to advise the court on what they, as experienced social workers, consider to be the best outcome for the children. Once one parent has made an application to the court, CAFCASS carries out safeguarding enquiries, including checks of local authorities and police, and telephone risk identification interviews with parents. They will inform the court of the outcome of those enquiries, and attend the first court appointment (the FHDRA – which we will explain about in a blog shortly) to try to assist mum and dad in reaching an agreement about what should happen in the best interests of the children.
Family Court Advisers also prepare reports for the court (known as section 7 reports) if ordered to do so by a judge. When a court feels a report about what is in the best interests of the child or the children’s wishes and feelings is necessary, the Family Court Adviser will meet with the parents and any other relevant adults, and usually see the children separately, in order to form an opinion on what would be the best outcome for the children. The report will explain what enquiries have been made and what they think is best for the children.
Often in these cases, CAFCASS officers are the sole source of independent advice to the courts. CAFCASS officers’ reports are highly influential on the court. If a judge wants to disagree with the recommendations of a CAFCASS officer, he or she has to give reasons why. In some cases, where the court feels the child needs more of a voice in the court process to ensure that his or her interests are fully looked after, a CAFCASS officer may be appointed to act as the child’s Guardian within the legal proceedings, or may advise on the appointment of someone else to do so.
In public law proceedings, the CAFCASS officer’s role is to represent the rights and interests of a child during cases where social services have become involved or in contested adoptions. They can appoint a solicitor to represent the child, advise the court about what needs to be done before it can make a decision, and write a report for the court saying what they think would be best for the children, including the wishes and feelings of the children concerned.
Outside the courtroom, CAFCASS has a role in organising supervised contact between parents and children, where a court has deemed supervision necessary for safety reasons, and in provision of information for young people and adults about all aspects of court proceedings involving children. They have an extremely helpful website which has a lot of information for children, teenagers and adults going through family breakdown or change.
Like most aspects of the family justice system and those of us who work with in it, CAFCASS has its fair complement of detractors, who do not feel that the process is sufficiently transparent, or feel that there is an inherent bias in the system that works against certain parents. There are also those who feel that CAFCASS officers generally do a good job in extremely difficult circumstances, and are a valuable, knowledgeable independent resource for a court trying to steer the best path for children where the adults responsible for them are unable to agree. As ever, if you would like to make an appointment to talk about any aspect of family law, please call us on 01223 443333.