CAFCASS & Social Services
When is the report ordered?
A Children and Family Reporter will normally be asked at the directions hearing to prepare a report. This is not automatic and judges are increasingly considering the cost implications of routinely ordering reports, particularly if the case has been before the court before and little has changed. You should consider, and be prepared to argue, whether you think it would be helpful or not for a report to be prepared for your case.
The time-tabling of the final hearing is often largely determined by when the welfare report might be available. Before CAFCASS, with more than fifty different probation committees being responsible for court welfare officers, waiting times varied greatly, with an average wait of around three months between the report being ordered and it being filed with the court. This may change.
What may the court order?
The judge who orders the report, who directs that it should be prepared, will generally stipulate on the order what issues the report is to address rather than leave it up to the Children and Family Reporter to deduce this from the actual application.
For example, if the father is applying for contact the judge may stipulate that the reporting officer should report on 'staying contact'. In a particular instance a judge may require that information about the father's accommodation should be provided because the mother may have questioned it's suitability. In the past some judges have, in their order, detailed to some extent what investigations the reporting officer should undertake, who s/he should see and where they should be seen.
For example, they may order that the school should be approached to contribute information. Other judges have felt the reporting officers to be sufficiently skilled and professional as to be able to decide such matters for themselves. Again, you should consider if there are any areas which you may consider important for the reporting officer to address, areas which s/he may overlook or disregard if they do not appear in the order. Ask the judge to specify them in the direction to the reporting officer.
Any Social Services involvement with the family will always be investigated.
The Children and Family Reporter detailed to prepare your report will not be the same person who may have been involved in trying to negotiate any agreement in any pre-trial conciliation appointment (something which often takes place immediately before the directions hearing) and should not be given access to any information or statements made during the course of the mediation process.
How will the investigation be conducted?
It goes without saying that both parties (the mother and father) should expect to be treated fairly and without bias. In the document, National Standards, from CAFCASS's predecessor, it was explicitly stated, that: "The enquiries should be even-handed and be fair to both parties." Also stated was that welfare officers should consider carefully whether it would be appropriate to:
see the parties separately and / or together;
visit each party at their home;
contact other relevant agencies such as the school, doctor, health visitor;
see each child alone and with their siblings;
see each child with each parent at their home;
see any other significant carers;
see the new partners of a parent.
Over the years there have been repeated complaints by fathers that the system has been gender biased, particularly that reporting officers have paid little heed to the list above.
A frequent criticism is that the reporting officer has interviewed the parent with care (PWC) with the children around them in their own home and as often as not found relaxed, contented children, interacting well with him/her. Then they have seen the children with the non-resident parent (NRP), not in their home, but at the CAFCASS office, where the PWC has brought them and possibly remains in a nearby room. The children may be ill at ease and wary, even worry that the PWC might observe or hear them being disloyal by 'being nice' to the NRP.
The NRP will struggle to have the children show their normal, loving interaction with him/her under such conditions. In some instances this may not matter but in a case where the PWC is trying to resist a NRP's application to increase contact such 'evidence' of the children's poor interaction with their NRP, gathered from such suspect sessions, would probably be critical in deciding the matter.
It is difficult to keep to hard and fast rules since the issues can vary so much. For example, an application for holiday contact may not benefit from a home visit but may be readily, and more efficiently, addressed without one.
Practice around the country has varied tremendously. In one area it may have been policy never to visit the parents' homes; in some areas officers always worked in pairs, in others always alone; some insisted on joint meetings involving both parents whilst others avoided them; some insisted on reading the parties' statements to understand the background whilst others preferred not to have preconceived ideas about the parties before meeting them. Some of this arose from local policy decisions and some derived from individual reporting officer's own preferences about the way they worked.
How is it best to manage the investigation?
Some reporting officers are very open and at the outset state clearly what steps they propose to take in their investigation.
In the 'old' National Standards it states that the reporting officer should tell the parties the purposes of the report and how it will be produced. This has been replaced by the new Operating Frameworked available here.
If this information is not offered it is recommended that you ask for it.
Then, if you think the proposals are unfair and might prevent the reporting officer from receiving a true and accurate picture it is up to you to persuade him or her to modify the proposals. How you do this depends very much on personalities. Yours and theirs. Gentle, or even artful, persuasion works best. It is essential that you avoid conflict for the reporting officers have the ultimate power - the power to distance you from your children.
Of course, there is a complaints procedure, but it is all too easy to take your eye off the ball and, instead of focusing on the main issues concerning your children, you could get side-tracked into a quagmire of complaints.
The reporting officer when preparing the report is bound to consider the items set out in s 1(3) of the Children Act 1989 (commonly referred to as the Welfare Checklist) so that s/he can give the court sufficient information so that it can have regard to:
the ascertainable wishes and feelings of the child taking into account the child's age and understanding;
the child's physical, emotional and educational needs;
the likely effect on the child of any change in circumstances;
the child's age, sex, background and relevant characteristics;
any harm the child has suffered or is at risk of suffering;
how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs;
the range of powers available to the court under the Act.
Like many situations involving relationships between individuals having different authority and power your relationship with the reporting officer is fraught with difficulties. Tact, charm and persuasion are far better vehicles for you than criticism, challenges and aggression, even though they may be built on solid foundations and entirely merited.
You have to negotiate with and 'manage' a person who has complete power over you, whose report could decimate the future of your relationship with your children. It is a difficult task - sometimes an impossible one.
A very common experience is that a reporting officer will appear to be sympathetic, even supportive of a non-resident parent's (NRP) position, lulling the NRP into a false sense of security and confidence. In these situations the final report often proves difficult for the NRP to accept since it runs counter to all the signals he/she has been receiving. Such behaviour on the part of the reporting officer, runs contrary to the Service Principals and Standards which required that,
"3.12. The Practitioner will aim to provide the adults and children with as much information as possible regarding the proposed report content and recomendations."
Hopefully, these standards will be followed more closely than under the previous system.
What are the report guidelines?
The 'old' National Standards (replaced by the new Operating Frameworked available here) listed elements which would help contribute to a 'good report' as follows:
be as short and focused as possible;
be clearly set out using numbered paragraphs, headings and sub-headings;
balance description and background with evaluation, summary and assessment;
differentiate fact from opinions;
present the information with sensitivity and in a way which does not exacerbate the relations between the parties;
be fair to the parties;
avoid unnecessary repetition of material which is available in other documents before the court.
Again, these appear to be admirable goals but unless they are adhered to, meaningless.
Please refer to the Cafcass Reporting to Court Policy for updated information.
Besides underlying principle of fairness, the other major failing in reports is that fact is often not differentiated from opinion, or from unsubstantiated allegations - to such a degree that in some instances it appears intentional. A section, which sets out unambiguously to provide one parent's point of view can all too often further down the report transmute into statements of fact, metamorphosing by the reporter's use of language - with the fact that these are still one parent's biased views being disguised. This should not happen. Please see section 3.7 of the Cafcass Reporting to Court Policy for clarification.
What recommendations might the report make?
The Service Principles and Standards state that the report will:
"3.11.2 make clear recomendations (or explain why recommendations cannot be made) which draw on relevant aspects of the Welfare Checklist;"
Rather than simply describing the family situation and leaving the whole decision to the court, where a reporting officer makes recommendations and the judge does not follow them s/he must give reasons for departing from them.
In the vast majority of cases a judge will 'rubber stamp' a reporting officer's recommendations, simply modifying small aspects and adding his or her own individual gloss. In essence, the case has been decided by the reporting officer by way of an administrative function; and decided without challenge, since the parties who are novices in this arena naturally assume that this function will be carried out by the judicial process when they will have a real opportunity to argue their case.
Though it would seem that with the advent of CAFCASS there may be an improvement in the reporting stage of the process, it is still likely, perhaps even more likely with the perceived increased professionalism of the reporting officers, that the courts will continue to 'rubber stamp' their recommendations. Therefore, non-resident parents (NRPs) must realise that their efforts should be focused on ensuring a positive outcome at this report stage, rather than leaving things until the court hearing.
What rights do I have to the report?
The report must be filed at least fourteen days before the date for the hearing, or sooner if the court has directed, and a copy must be served by the officer on the parties. If you are represented this will be sent to your solicitor. If you are not represented, but are acting in person, the report should be sent directly to you.
If you have not seen it by the date it should have been filed contact the reporting officer to check that it has been filed and then request a copy. It is the reporting officer's duty to provide you with a copy, not the court's.
On occasions, litigants have not been provided with reports and reporting officers and court staff have erroneously claimed that the confidential nature of the report means that it can only be given to legal representatives. Some members representing themselves have even been denied sight of the report until the hearing was actually underway. Do not let this happen to you.
Also, on odd occasions, solicitors have refused to provide the client with a copy of the report, falsely claiming that the 'rules' on confidentiality require this, and have only allowed the client to read it briefly in the safety of their office. If it happens to you, refer the officer, the court office and the solicitor to Rules 4.13 (1) and 4.23(a) of the Family Proceedings Rules 1991. The report is confidential, you must not show it to your friends and family, but you, the parent, as a party are entitled to have a full copy. **UPDATE (July 2005)** see McKenzie Friends
How should I respond to the report?
If you notice any factual errors or omissions in the report, the CFR should be notified imediately in writing, giving them the opportunity to make amendments before the court hearing. Opinions or procedural questions should be dealt with as follows.
With a statement
In some instances the court directions will provide for further statements following the filing of the welfare report so that the parties can comment on it. This would appear to be sensible since it can help crystallise the arguments which may be raised and explored at the ensuing hearing. However, many judges prefer that no further statements are filed after the report.
In court through questioning the Children and Family Reporter
Some years ago the arrangement was that in all cases the reporting officer was required to attend the hearing, in order to be available for questioning by the parties, unless specifically excused by the judge. Nowadays the arrangement has been reversed and the reporting officer will only attend if specifically directed to by the judge. That direction is often given early in the case at the preliminary direction hearing or at other hearings even though the Rules (The Family Proceedings Rules 1991) state that the direction may be made after the filing of the report.
Leaving this decision until after the filing of the report seems sensible, since only then would the parties really know whether they wished to accept the report and its recommendations without question. However, waiting until this late stage may present practical difficulties since the reporting officers may by then have arranged other appointments for that day; there may be no court time available for further directions; and solicitors acting under a public funding certificate may feel that the expense of an additional directions hearing cannot be justified.
Therefore, it may be necessary to ask the judge at an earlier stage to direct the reporting officer to attend unless both parties agree that s/he need not.
Until recently, arising from Court of Appeal authority, the reporting officer could only be "asked questions" about the report and could not be cross-examined since s/he was regarded as an officer of the court, not a witness.
This has changed, though you may need to remind the court of this by quoting Section 16(1) of the Criminal Justice and Court Service Act 2000 which states: "An officer of the Service [CAFCASS] may, subject to rules of court, be cross-examined in any proceedings to the same extent as any witness."
However, old habits die hard, and it is likely that for some time at least judges may continue to protect officers from what may appear to be hostile questioning.
The 'busy' officer's input will often be taken first, before other evidence in order to release him back to his important work without further delay. This can be unfortunate on occasions when unexplored issues relevant to the report are raised later in the case after the officer has left. Then there will be no opportunity to explore them with the help of the officer's input. On very rare occasions the officer may be recalled later in the case.
If the officer does not attend then it is more difficult to have major challenges accepted. In any order the judge cannot depart significantly from recommendations in the report without giving the reporting officer the opportunity to explain why the proposed order is not suitable. Therefore, if you wish to 'overturn' the welfare report you must ensure that the officer attends.
In any report there are likely to be a number of positive as well as negative observations. It is better to concentrate on the positive aspects, the matters on which you and the reporting officer agree. Spending too much time dealing with the negative aspects generally serves to highlight them and give them greater emphasis.
Allegations of bias on the part of the reporting officer stand to annoy the court since Children and Family Reporters are officers of the court and such allegations impugn the impartiality of the court itself.
The question from the judge, "Why should the reporting officer not have behaved in a fair and objective manner whilst seeking to assist this court?" is essentially a rhetorical question, not one which allows the obvious reply which incorporates the explanation of gender bias. With allegations of bias you can isolate yourself, appearing to be unduly critical and cantankerous, being the only one out of step, as the court, the reporting officer and the other party (your ex) all agree on the accuracy of the report.
Challenge by way of complaint
It is difficult to assess when might be the best time to complain.
If you wait until the report has been finalised then you may have tangible evidence, rather than perhaps having to rely on allegations of perceived bias deriving from odd remarks which the officer may deny or seek to explain away. However, if you wait until this point there is likely to be insufficient time between the filing of the report and the actual hearing for any corrective action to take place.
An adjournment of the hearing, whilst an addendum is prepared or an entirely new report from another officer is prepared, might not be in your child's interest. And, judges might choose to go ahead with the hearing, notwithstanding your complaint, since under the Children Act 1989 any delay is assumed as being "likely to prejudice the welfare of the child" (Children Act 1989 s 1(2)).
Complaints, especially those about the conduct of the investigation, arising after the report has been filed may be regarded by the court simply as 'sour grapes', that had the report been favourable to you there would have been no such complaints.
A complaint during the enquiry stage may naturally antagonise the officer who has such potential power over your children's lives. Your complaint may just possibly result in your case being transferred to another officer, but this officer is likely to be a colleague of the original officer and supportive of him and the service against troublesome parents. You may of course complain about the proposed manner in which the officer plans to make his enquiries but any complaint should only arise subsequent to the failure to negotiate an acceptable change.
The CAFCASS complaints procedure is available from their website.
What are the do's and don'ts?
Making a good impression on the CFR is vital for those seeking to maintain contact with their children.
Co-operate with the enquiry
Be child centred
Show that you understand your ex's concerns
Remain calm, confident and relaxed
Focus on the present and future arrangements
Remember the long term
Be prepared to compromise
Mention the wider family
Respect race, religion and culture
Challenge the officer
Be overly defensive
Concentrate on the adult's relationship
Run down your ex or sling mud
Appear obsessive about your child
Be afraid of offering to modify your proposals
Seek to prove every point by reference to documentary 'evidence'
Be petty or melodramatic
What role do courts and social services play?
Under section 37 of the Children Act 1989 a court may direct a local authority to investigate a child's circumstances if it appears that a Care Order or Supervision Order would be appropriate. In most cases involving Social Services a Guardian ad Litem will be appointed to represent the child. In some circumstances the Official Solicitor may be asked to act.
The local authority Social Services department, if so directed, must consider whether to take any action, such as applying for a Care or Supervision Order or providing services or assistance to the child or the family. If the authority decide not to apply for an order they must report their decision to the court, giving reasons and details of any action they are taking or propose to take, normally within eight weeks. They must also consider whether the child's circumstances should be reviewed and when any review should begin.
Where a child is thought to be at risk a local authority may apply for a Care or Supervision Order, or take emergency protection action. If the court has already directed an investigation then the local authority must give reasons for any decision not to apply for an order.
Local authorities must act to protect children from any harm arising from family breakdown or abuse within the family, but avoid unwarranted intervention. They must have regard to the wishes and feelings of the child, parents, and any other person with parental responsibility. They must also consider the child's religious persuasion, racial origin and cultural and linguistic background.
When a child is in care the local authority may determine the extent to which any other person with parental responsibility for the child may act in relation to the child.
A local authority must take such steps as are reasonably practicable to promote a child's welfare, where the child is in need. The steps include promoting contact between the child and their family.
What are Care and Supervision Orders?
Where a child is thought to be at risk a local authority may apply for a Care or Supervision Order, or take emergency protection action. If the court has already directed an investigation then the local authority must give reasons for any decision not to apply for an order.
A Care or Supervision Order may only be made when the local authority or an 'authorised person' - usually an NSPCC officer - has applied for such an order. However, the court may make an interim order pending further investigation. The child must be under 17 when the order is made, and any order will automatically cease at age 18 (but may be terminated earlier).
A Care Order enables the local authority to decide with whom the child will live, and also gives the authority parental responsibility. It does not give the right to agree or refuse to agree to adoption or to appoint a guardian but an application may be made to have an appointed guardian discharged.
A Supervision Order puts a child under the supervision of a designated local authority or a Probation Officer. The appointed supervisor has three specific duties: (i) to advise, assist and befriend the child; (ii) to take all reasonable steps to ensure that the order is effected; and (iii) to apply for variation or discharge of the order if it is not working or has become unnecessary. The appointed supervisor has power to impose requirements upon those with parental responsibility for the child or any other person with whom the child is living.
The local authority or authorised person applying for a Care or Supervision Order must serve a copy of the application on every person who has parental responsibility for the child. The applicant is required to give details of future plans for care of the child, including any restriction on contact.
What are Child Assessment Orders?
A Child Assessment Order deals with the examination or assessment of a child in specific circumstances of non co-operation by the parents, where the child is not thought to be at immediate risk of significant harm. The court must be satisfied that there is reasonable cause to suspect that an assessment is required. The order is designed for cases where there is as yet no firm evidence and where the harm to the child is thought to be long-term and cumulative rather than sudden and severe.
An application for a Child Assessment Order should always be preceded by an investigation under section 47 of the Children Act 1989 (the local authority duty to investigate). The effect of the order is to require any person who is in a position to do so to produce the child for assessment and to comply with any other directions made in the order. The holder of the order does not acquire parental responsibility for the child, and a child of sufficient understanding may refuse to consent to an assessment. A Child Assessment Order can co-exist with a Contact Order, but is not required when a Care, Supervision or Emergency Protection Order is in force.
The court has a duty to take advice from those professionals presenting the case and any other professionals involved about what the assessment should cover. The court can determine who should be given the results of any assessment.
Only a local authority or an 'authorised person' may apply for a Child Assessment Order. The order must specify the date by which the assessment is to take place.
What are Emergency Protection Orders?
An Emergency Protection Order enables a local authority to remove or protect a child from danger and confers parental responsibility on the authority for the duration of the order, which is strictly time-limited to eight days with a possible seven day extension.
Before making an Emergency Protection Order the court must be satisfied that the child is likely to suffer significant harm. Some evidence that the situation is sufficiently serious must be provided. A refusal to produce the child or divulge his or her whereabouts to a local authority or other agency acting on their behalf in carrying out an enquiry is acceptable evidence. The court will decide whether any refusal was unreasonable in the circumstances.
An application for an Emergency Protection Order will usually be heard ex parte. The applicant is required to serve a copy of the application and order within 48 hours on any person who has actual care of the child. Explanatory notes to parents informing them of what will happen and what they can do should also be provided. Parents may challenge the order if present at the hearing or (if not) ask the court to discharge it after 72 hours.
While an Emergency Protection Order is in force any person who is in a position to do so must comply with any request to produce the child. The order authorises the child's removal and is normally accompanied by an order giving powers of entry and search. The order also gives parental responsibility, but the applicant may only take action which is reasonably required to safeguard or promote the child's welfare.
Any person can, in theory, apply for an Emergency Protection Order in order to protect a child at risk. The local authority must be notified by the applicant under court rules and will then have a duty to investigate. The authority may take over responsibility for the order and the powers that go with it.
What are Family Assistance Orders?
Under section 16 of the Children Act 1989 the court may make a family assistance order. This can last for up to twelve months and is designed to give expert help to families, particularly where there has been separation or divorce. Family assistance orders may be made even if the court makes no other order in respect of the child.
The court may make a family assistance order where it has power to make an order under Part II of the Act and there are exceptional circumstances. Under a family assistance order a local authority or probation officer will give advice and assistance to the person named in the order. This may be the child, a parent or guardian, or any person with whom the child lives or in whose favour a contact order is in force. Before a family assistance order can be made each person named in it (except the child) must give consent.
Do authorities Promote Contact?
Local authorities are required to actively promote contact between a child in care and all those who are connected with the child unless it is not reasonably practicable or is inconsistent with the child's welfare. In stark contrast to 'private law' cases, it is recognised that if contact with the parent is not maintained then re-unification becomes less likely. The definition of 'parent' includes unmarried fathers and other persons who have care of the child.
A contact order under section 8 cannot be made when a child is in local authority care, and any existing order is automatically discharged on the making of a care order. A local authority is required to allow the child 'reasonable contact' with parents, guardians or any person having a residence order or wardship immediately before the care order was made. It is for the authority to decide what is 'reasonable contact' unless specifically directed by the court.
A local authority should prepare and submit proposals prior to the making of any order, and where possible discuss and agree them with the parents beforehand. Any disagreement is resolved by the court making an order as to the degree of contact.
Any person to whom the presumption of contact applies can apply for an order to vary the amount of contact provided at any time. The child may also do so, and can apply for contact to be reduced, suspended or terminated. The court may also make any order it deems appropriate on its own initiative during the proceedings.
A local authority may in some circumstances make payments to assist contact.
What is a Guardian ad Litem
In any Children Act proceedings involving Social Services it is likely that a Guardian ad Litem (GALRO) will be appointed to represent the interests of the child. Responsibility for the decision to appoint a GALRO lies with the court, but any party to proceedings may apply and the court may make an appointment of its own motion. In some cases in the High Court the Official Solicitor may be asked to act, and a GALRO will also be required in proceedings under the Adoption Act 1976.
The Guardian ad Litem service is governed by the Guardians ad Litem and Reporting Officers Regulations 1991 and section 41 of the Children Act 1989. The service is administered by the local authority GALRO Panel Committee and run by a Panel Manager, who must be independent from other local authority functions in respect of children. The Panel Manager does not deal with individual cases but is responsible for induction, training and assignment of staff. In many cases one GALRO Panel will be shared between two or more local authorities.
A Guardian ad Litem is usually a social worker who theoretically acts independently of the local authority. It is not uncommon, however, for a GALRO to have previously been employed by the Social Services department involved in the proceedings. A GALRO who has been directly involved in the care, accommodation or welfare of the child in the previous five years must not be appointed to the case. Parents are entitled to query whether the GALRO has any connection with the Social Services department involved.
The main duty of the Guardian ad Litem is to 'safeguard and promote' the child's welfare and to recommend what order the court should make in care or supervision proceedings, taking into account the child's wishes and feelings and ensuring that they are made known to the court. In practice this will mean seeing the child, the parents and other interested parties (including Social Services), providing the court with an assessment and advising on a suitable timetable for proceedings. A GALRO should, where possible, facilitate 'reasonable contact' between parent and child and may in some cases observe it taking place.
A Guardian ad Litem has a right to access any records kept by Social Services or the NSPCC concerning the child and may use these in evidence during proceedings. A GALRO may also access any medical, psychiatric or psychological reports ordered by the court, should ensure that parents know what evidence is to be adduced, and make them aware of the local authority and GALRO position before final disclosure of any reports.