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Family Law Blog

Comment on divorce & family law 

Why Cafcass has a vital role to play in divorce and separation

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Vital role of Cafcass in divorce.

Cafcass stands for Children and Family Court Advisory and Support Service and its role in children proceedings is both to make sure children's voices are heard and that decisions are taken in their best interests (which is not always the same thing – what a child says he or she wants and what he or she may need can be quite different).

Cafcass evidence and recommendations are made at the Court’s request and are considered ‘expert’. Unsurprisingly, it is considered to be very important and a Judge needs very persuasive evidence and good reasons to depart from a recommendation. However, this does not mean that Cafcass recommendation should be considered determinative. Lawyers must evaluate Caffcass reports like any other evidence.

Do Cafcass get it wrong?

I recently challenged at a final hearing recommendations in a Cafcass report which was brief, flawed, had an element of pre judgement in my view and, most importantly, had recommended a huge change of situation for a small child based on almost fleeting investigation and time with the important people involved. I saw a whole host of reasons why the CAFCASS evidence needed to be properly scrutinised by the Court and this was not a case where my client should accept that the writing was on the wall. As it turned out, my concerns were shared by the final hearing judge.

In general, I am finding Judges are more careful when considering Cafcass evidence than before. I wonder if it is because it is widely known how stretched and under resourced Cafcass as an organisation is now (much like the family justice system as a whole). I am not for one moment criticising Cafcass officers. You can be experienced, dedicated and child focussed but if you do not have sufficient time and resources to carry out enquiries, consider and form recommendations and properly write up your report, the outcome is going to be less than helpful. Children and family relationships are complex. What we see at first blush is not always the whole picture. If we do not have time and cannot be thorough, we make assumptions, take things out of context and sometimes fall back on accepted prejudices. It is to be expected.

But when Cafcass get it right…

The unhappy thing is that when Cafcass are able to do good work it is nothing short of transformative for families and for the legal process. Sensible safeguarding cuts through the nonsense and focuses everyone’s thoughts on the real issues. I was at Court a few weeks ago for a brilliant conciliation where the legal and social issues were massively complex and, had everything been disputed, it would have been a lengthy and expensive struggle. The Cafcass officer worked so hard with the parents to get through the emotion on one side and the anger on the other and had the persistence and foresight to realise once they did everything would fall into place. And we left with the most fantastic agreed order, largely thanks to that Cafcass officer. Recently I saw Cafcass pull out all the stops to make an officer available at short notice for an international family where there were urgent issues to be addressed and little time in which to address them. The officer got stuck in and did her job and the family situation changed beyond recognition within a week and I hope it continues to do so.

Cafcass will continue to work with in a challenging environment with very limited resources. Officers will continue to do excellent work. But as lawyers we must remember the real world issues and make sure the evidence is properly evaluated so decisions are truly made in children’s best interest

Kathryn McTaggart
Family law solicitor, Cardiff

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