The Perfect Collaboration by guest editor Charlotte Milbank of Chatty Puffin
July 24, 2023 - New
Dealing With Cafcass
How do Cafcass become involved in my case?
After a C100 application has been submitted to the court, it goes through a gatekeeping and allocation process.
A FHDRA hearing will be listed, and an initial directions notice will be issued to all parties from the applicant to the respondent, named third parties and Cafcass.
Cafcass will be appointed by the court to prepare a safeguarding letter to be delivered to the court prior to the FHDRA hearing.
What is a safeguarding letter?
A safeguarding letter is a court document prepared by Cafcass to give initial advice and recommendations to the court as to whether there are immediate welfare or harm issues concerning the children in the application.
The preparation of the letter includes preliminary background checks with the Local (and possibly) National Police Databases regarding previous criminal records and former or current police involvement with the applicant and the respondent.
Also included are checks made with the social services authorities as to whether the children, the parties or the family have been (or are) known to social care.
This information, combined with interviews of both parents, is compiled into a letter given to the judge with an interim recommendation for where the children should live and with whom they should be permitted to spend time.
Supporting separated parents in financial difficulties who need to make UK child arrangements orders.
What happens with the safeguarding letter at the FHDRA hearing?
You will have been given a copy of the safeguarding letter before the FHDRA, so you know what the report says and what recommendations Cafcass has made.
The judge in your case will review the report and discuss the contents with the applicant and the respondent.
If the report unfairly represents what you told Cafcass in your interview, or if there are any material inaccuracies or inconsistencies, you will have the opportunity to bring this to the judge's attention at the FHDRA hearing.
Once the judge has heard from all sides and reflected upon Cafcass’ recommendations, they will issue their directions. This will relate to interim contact and residency arrangements along with any other matters that need to be considered as part of the C100 process. The judge will do this in the form of recitals which will be attached to the order and sent to you by either email or post.
Will Cafcass be at the FHDRA hearing?
Cafcass are supposed to attend the FHDRA. However, in reality, they only attend the hearing if instructed by the court.
Most family courts have a Cafcass officer in residence or available in case they are needed in a hearing. Under pandemic conditions, where hearings are undertaken remotely, you should assume that Cafcass will not include themselves in the telephone conference call, even though required to do so.
How long do interviews usually last?
An interview typically lasts between 15 minutes to 30 minutes, depending on how complex things are and how much discussion time is needed.
Most interviews are completed in less than one hour.
Supporting separated parents in financial difficulties who need to make UK child arrangements orders
Preparing for the Interview
First Rule – Remain Child-Focused
Almost everyone who goes into a Cafcass interview is emotionally charged, anxious, confused and harbours grievances towards their ex-partner. However, it is neither helpful to the reporting process nor your case (whether you are the applicant or the respondent).
Cafcass are used to this. McKenzie Law Partners always counsel our clients to leave prejudice aside, be clear on the various elements of their case and remain child-focused at all times.
It is hard to keep your focus on the children, especially when you have most likely experienced a difficult end to a relationship. If you carry a lot of bitterness and animosity toward your former partner, it is vital to the process to separate your role as a parent from your role as an adult and former partner.
The Family Court is only concerned with one question — what outcome is in the best interests of the welfare and emotional wellbeing of the children? That is not to say that your own interests are not important. On the contrary. But your own interests and wellbeing are of secondary importance…not primary.
The Paramountcy Principle: the child’s welfare must come first.
Section 1 of the Children Act 1989, Welfare of the child, states: (1) When a court determines any question with respect to — (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it,
…the child’s welfare shall be the court’s paramount consideration.
You would do well to remember this throughout the C100 process!
How should you remain child-focused?
Let’s take a simple sentence: ‘I miss my children, and it upsets me.’ Straightforward enough. However, what is wrong with this sentence?
Answer: The sentence puts you first, not your children!
Let me restate the same sentence: 'My children are missing quality time with me, and I am concerned for their emotional welfare.’
The sentence says the same thing; however, unlike the first sentence, the child is the point of the message. And the concern for the child is connected to the message.
Here at McKenzie Law Partners, we are not saying that you should start each sentence with the words ‘My children are…’.
Instead, we are saying that the objective is to deal with the needs of the children and that their emotional, psychological, physical and developmental wellbeing is paramount — this is known as The Paramountcy Principle.
The court will not give you your children just because you miss them or you are lonely and sad at losing family time.
The court's role is to identify if the children are at any risk (such as from emotional, psychological, sexual, or physical harm) and where and with whom the children are best living (from a welfare perspective). It is about establishing the best interests of the child.
o Plan your discussion points and reasons ahead of the interview.
o Identify real concerns you might have about the other parent.
o Understand what beneficial qualities you bring to your Children’s lives.
o Put yourself in the child’s mind and ask – o Emotionally, what does your child want? o Emotionally, how does your child feel? o What makes your child feel happy? o What makes your child feel sad? o What are your child’s interests and pastimes? o Where do your child’s friends live? o Does your child enjoy their school life? o Does your child have regular contact with wider family? o How would your child feel if they could not see their family? o How does your child feel about their mum or dad? o Does your child worry about not spending time with you?
If you are applying for full or shared residency, ask yourself, ‘can I provide for all of my children’s needs?’ (needs are more than food and water; they are schooling, structure, routine, pastoral care, emotional wellbeing, developmental needs etc.)
This is not an exhaustive list. But if you cannot think about things with your child in mind, then you should question your true motivations for applying for a #ChildArrangements order.
Supporting mental wellbeing for families and yourself with counselling and understanding.
Be assured that the court will, albeit sometimes poorly, seek to work out the children's best interests. They will rely upon Cafcass to assist them in doing so.
What are the limitations when dealing with Cafcass?
Cafcass is a government body. While some of the Cafcass officers are formally from local authority social worker backgrounds, not all are. Some are fresh from university with ‘social-something’ degrees and zero life experience.
For this reason, be clear on your objectives and your message.
If you treat Cafcass as if they were your de facto therapist or counsellor, purging yourself of the sadness and bitterness you feel towards your ex-partner and their family, you will only put yourself up for a considerable amount of disappointment.
Remember: This is not about you primarily; it is about your children!
Do not overwhelm Cafcass officers with miscellaneous information that is barely relevant to your case and the welfare of your children.
And expect Cafcass to get some of your facts completely wrong (social workers are dreadful for not getting key details right).
Your interview is time-limited — so make the time you have count.
Do not bring money issues such as child maintenance into your case. Do not say he’s only asking for residency because he wants to drop the CMS payments he currently gives me. Conversely, do not stop the other parent from having good (and regular) contact and access with your children because you fear a change in child maintenance or you are angry at not receiving any maintenance. The Family Court does not resolve child maintenance issues (except in very special circumstances).
McKenzie Law Partners recommend that, after your interview, you email the Cafcass with a one-page summary of your points and facts (one page of A4 paper). If you send them any more than that, the chance of it being read, absorbed, understood and correctly translated into your safeguarding letter is minimal to non-existent!
70% of court cases involve allegations of domestic violence and abuse.
What about domestic abuse (DV) in my case?
60-70% of all #ChildArrangements order cases now involve allegations of domestic violence or emotional, psychological, financial, or sexual abuse.
Most are genuine, sad and harrowing real-life cases.
But let me preface with this. The wonder of ‘the internet’ and the rise in social media groups offering endless stories and advice on how best to win your case hasn’t been beneficial for anyone. Unfortunately, it has led to increased instances where the allegations are contrived, or at the very least, over-dramatised and upcycled into super allegations.
Just remember — on the other end of the court petition is a real human being with feelings. Wrongful accusations can lead to lasting damage for the adults concerned and to the children who are connected with them.
If you used to argue a lot over stupid things because you were not well suited and could not see eye-to-eye, that is not necessarily domestic abuse; although since the Re: H-N [2021] EWCA Civ 448 case, priority is given to coercive and controlling behaviours therefore more breakdowns now feature domestic abuse allegations.
If one or other (or both of you) used to push, punch, kick, spit, cut or physically harm the other, that IS domestic violence.
In Family Court and Cafcass terms, ‘abuse’ is a vast umbrella word which encapsulates the following (not legal definitions):)
Financial Abuse (economic abuse where one party restricts monies and funds towards the other such as to impinge on their liberty, lifestyle, needs and wellbeing – or to stop the other party from leaving a toxic and broken relationship) Sexual Abuse (including marital rape, forced into performing sexual acts or favours against your will; or humiliated and degraded into giving sex without proper consent) Emotional Abuse (threats and intimidation, constant criticism, undermining and being made to feel guilty etc.) Psychological Abuse (regular and deliberate use of a range of words and non-physical actions used with the purpose to manipulate, hurt, weaken, or frighten a person mentally and emotionally; and/or distort, confuse or influence a person’s thoughts and actions within their everyday lives, changing their sense)
Cafcass have case tools for victims of domestic violence and abuse.
This should come up in the interview, and you will be allowed to outline what has happened to you so that it can be included in the safeguarding letter.
If you have medical evidence from your GP, email it to the Cafcass officer ahead of your interview and make them aware of it during the interview
If you genuinely feel domestic abuse exists in your case, this should be included as part of your C100 and C1A application.
Abuse should, ideally, be independently evidenced. This can be from police being called and/or arrests being made to seeing your GP at the time of the abuse so that your doctor can examine you and correctly notate your medical records.
Financial abuse should be evidenced using bank statements etc.
That is not to say that if you have no physical evidence, you cannot make allegations of domestic abuse. However, without corroborating evidence, it becomes one party’s word against the other.
The Family Court has a duty of care to protect the resident parent and the children living with the resident parent. This duty is designed to insulate and remove both the children and the resident parent from being victims of further instances of abuse and/or violence.
Where the children have previously witnessed abuse and violence between parents, this will be a focus for Cafcass and the judge.
What will my Cafcass safeguarding letter say?
The report produced by Cafcass will list all the information they obtained from the police searches and any information they found within the local authority social services records.
It will also include an interpreted summary of anything you informed them of during your interview.
The same will be said of the other party as well.
Cafcass will then make a series of recommendations for the judge to consider at the FHDRA hearing.
What do Cafcass recommend?
Cafcass has the power to make whatever recommendations they deem necessary for your children's safety and wellbeing.
They will also make any necessary recommendations to keep the resident parent safe and free from any further threat of harm (where domestic abuse has been identified).
Cafcass will consider any existing parent-sharing arrangements between the applicant and the respondent.
However, if safety concerns are identified, they may change any existing arrangements and replace them with their own recommendations.
Suppose the children have lived with only one parent and have not had contact with the non-resident parent, as long as there are no safety and welfare concerns. In that case, Cafcass have a default position that the non-resident parent (usually the father) will have contact rights on alternate weekends.
However, Cafcass will consider increasing the contact rights if there are good reasons for doing so and if it is determined that it is in the children's best interests.
Are Cafcass biased towards women?
The entire Family Court system, women’s rights charities, and family court advisers (Cafcass) lean towards women, even though they do not admit it.
If you are a non-resident father, you will always face the challenge that the system seems to be against you — and that is a sad but presently true indictment of the current law system surrounding children-related matters.
However — know your truth, live your truth!
When a parent applies for a shared care (50/50) arrangement for the children, be sure you can prove that you have all the necessary qualities. This way, you can show that you can provide the same quality and levels of care and child enrichment as your children would expect to receive with the resident parent.
Remember that a child is best served by having a healthy balance of both parents in their lives, so long as it is safe for them and good for their emotional and developmental wellbeing.
Children can cope with their parents living in separate homes. They can cope with visiting and staying with both parents. But what they need most is structure and routine.
It does not follow that a child can only obtain structure and routine in their life by living with one parent alone. But you need, as the non-resident parent, to promote that point. Remind Cafcass that children can (and do) thrive in the homes of separated parents - as long as their needs are attended to.
What if I disagree with Cafcass’ recommendations?
If you disagree with the recommendations in Cafcass’ safeguarding letter, you must bring these to the judge’s attention at the FHDRA hearing.
Prepare a ‘position statement’ and plan to present your concerns in oral submissions before the judge. You will be given ‘rights of audience’ as a party involved in the case.
Set out your concerns, one point at a time, with a line space between each line. If you prefer, we can assist you in preparing your position statement here at McKenzie Law Partners.
There are no guarantees that your concerns will sway the judge. And the judge may defer considering them until a future hearing, which could, unfortunately, be many months later.
One thing is for sure, if you have domestic abuse allegations against you or have been accused of mistreating your children, Cafcass will likely recommend that you have no contact or limited, indirect contact to begin with. And the judge will be almost impossible to persuade differently.
