Cafcass & Private Children Law Proceedings – by Jennifer Hollyer

Children|October 2nd 2009

Cafcass, which stands for Children and Family Court Advisory and Support Service, was coined by the Criminal Justice and Court Services Act in April 2001. A public body, Cafcass looks after the interests of children involved in family proceedings.

Its role in private children law is to:

  • Safeguard and promote the welfare of children.
  • Help the courts in coming to an arrangement that would suit the child involved
  • Investigate all welfare concerns and/or any wishes and feelings of a child of sufficient age.
  • Provide the Court with a report of its investigations, including a recommendation.
  • Help appoint a children’s guardian in cases where the children need to have their own voices.
  • In some cases, help provide families with supervised contact.

Private children law proceedings are extremely emotional and traumatic experiences for families. A child’s welfare, best interests, wishes and feelings are central to children law. It is sometimes difficult, therefore, for a court to make a decision as to where a child should live and how much contact they should have with the non-resident parent without first investigating the child’s circumstances. This is where Cafcass comes in.

As a Cafcass volunteer, I used to supervise contact at a contact centre in Sheffield once every four to six weeks at weekends. I saw many families that had been subjected to the court system. I saw some cases where supervised contact worked really well, especially for the younger children. Parents and grandparents would bring age appropriate presents for children or grandchildren. These families would then move on to manage their own, unsupervised contact without the aid of Cafcass or the court system. Success.

However, the other side of the coin featured families whose behaviour prompted obvious and continuing welfare concerns. In some cases, contact had to be stopped. On more than one occasion I had to report a parent for saying things to their children such as, “Daddy does not want to see you because he cannot be bothered with you anymore. He is too occupied with his new child and does not want you anymore”. It was heartbreaking to see the child’s face when they thought that Daddy no longer wanted them. I could see that Cafcass was much needed in these cases as the courts could not see what happened behind the scenes. These experiences inspired me to pursue a career in children and family law.

In my opinion, Cafcass is a necessary element in children law. Its employees are viewed as experts in child services and their values support a child-focused organisation that promotes equality, honesty, openness and realism. So I have found it disturbing to read some of the recent news about Cafcass.

Since the case of Baby P hit the media, the number of care cases in the public law sphere has rocketed. This rise has placed Cafcass and other child services under pressure, because of the increased caseloads. These pressures have also affected the private sphere, with delays lengthening. At present it can be as long as four or five months before a Cafcass report can be provided to the Court. This is not good enough. Even the Children Act states that delay in determining the questions about a child’s upbringing is “likely to prejudice the welfare of the child”. The delays are unnecessary and also prolong parents’ agony.

The stretching of Cafcass’ time and resources has led to failings in certain areas around the county. Ofsted has this year reported that in Durham and Tees Valley, Birmingham and Black Country and in North Yorkshire and Humberside, Cafcass’ service is inadequate. In North Yorkshire, recent experiences have left me wondering about Cafcass’ condition. Here, the organisation is attempting to cope with an overload of cases, limited and restricted funding and an increased drain on resources.

Cafcass must also contend with a shortage of qualified guardians, a shortage of general staff and considerable problems when allocating cases. It has been reported that in London, Cafcass cannot afford to pay its self-employed guardians for the rest of the year.

So what happens now – and can anything be done?

During my time as a volunteer, I noticed that there were weekends when a family had been allocated a slot for supervised contact – and nobody would turn up. Such absences cause unnecessary delays to other families who are waiting for places and for parents who have earlier been denied contact without good reason. No-show families should bear these consequences in mind.

Earlier this year Sir Mark Potter, the President of the Family Division, stated that he views part of the problem to be due to many judges’ surfeit of enthusiasm. Rather than ask focused questions before continuing with a case, they have been requesting full reports.

It has been noted that Cafcass is now working with senior judges to cut the time and drain on resources, by requesting shorter reports for those cases in which welfare is not a problem and concentrating on the case’s specific issues. Judges should dispense with all reports if it is not necessary to request one.

It is my belief that this situation must improve so that children agencies such as Cafcass can provide the job that they set out to do. Until this happens, Cafcass is stuck between a rock and a hard place, trying to provide the best service possible for children but not being able to because of the drain on the system. For further information on Cafcass, please see its website.

Children lawyers: urge parents to be amicable and to settle their children disputes out of court if they can. This would help in reducing delay for those cases where child welfare is a real and proper concern.

My legal mentor Stephen Hopwood, Head of the Children’s Department at Stowe Family Law, advises that it is not usually the separation of their parents that adversely affects children. It is the fact that their parents cannot make decisions for them as to what is in their best interests that leaves the children floundering, not understanding what is happening to them. It is therefore very important for parents to try to find avenues in order to agree on their disputes for the sake of their children.

At Stowe Family Law we are finding that, increasingly, our Children’s Department is negotiating agreements based on our own Stowe Family Law parenting plan. In such cases, parents sit down and try to reach agreement about the issues at stake, for example determining in advance the times that each parent will spend with the children. Such measures can help to avoid arguments in the future. I will say that we are certainly not afraid to give firm, practical and pragmatic advice to our clients. Fortunately most parents appreciate that the welfare of their children is paramount, and that children should never be used as tools to “get at” the other side.

Author: Jennifer Hollyer

Jennifer has experience in most areas of family law, in particular with cases involving children disputes (including international children disputes) and/or domestic violence.

Comments(5)

  1. Coping with divorce, part two. Fight your demons. | Marilyn Stowe Family Law and Divorce Blog says:

    […] Proceedings involving children are different. In such cases allegation upon allegation, true or malicious, can by heaped upon parties in ”the children’s interests”. Common sense and rational thought can fly out of the window. […]

  2. Children Law: Our Young Client Appears In Court - by guest blogger Eleanor Webster | Marilyn Stowe Family Law and Divorce Blog says:

    […] of the court’s mind from the very beginning of the case. It also dispensed with the need for a CAFCASS report, which is usually how the judge would be made aware of what the child wanted. A […]

  3. Children & divorce: where do we go from here? | Marilyn Stowe Family Law and Divorce Blog says:

    […] CAFCASS is overburdened (see Jenny Wilmot’s recent post on problems with CAFCASS).  […]

  4. Commonsense bypass says:

    You are in a mutually convenient fantasy land. CAFCASS do none of the things it is tasked with, for which it claims the right to snarl up the family law courts to an even greater extent than it does currently and increase its drain on the public purse. Its operations have been found to be inadequate and worse.

  5. Commonsense bypass says:

    Only a discredited industry would insist on using the name of a dead baby child to launch its bid for increased status and pay. Throwing money is not a replacement for ethics and convinces no thinking person.

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