The role of CAFCASS within private Children Act proceedings

Children disputes involving private law proceedings and the Children and Family Court Advisory and Support Service (CAFCASS) have decreased, as shown by the data that was released by CAFCASS in December 2024.

CAFCASS have published data to show that in November 2024 they had 16,596 open private law children cases involving 25,394 children which is 1,673 (-9.2%) fewer children’s cases and 2,309 (-8.3%) fewer children when compared to November 2023.

It is unclear what has caused the slight reduction in cases. It might be that more parents have been able to resolve the arrangements for their children amicably between themselves, much to their credit, or it might be that more people are looking to non-dispute resolution options such as mediation as opposed to litigating matters through the courts. 

Many parents are unclear about the role of CAFCASS. We answer some common questions below.

What are private proceedings?

These are applications made under section 8 of the Children Act 1989 by individuals.

Where someone seeks an order in respect of a child who is in the care of the local authority, it will be considered a public law matter.

Certain categories of people are entitled to make an application under section 8 of the Children Act 1989 without having to seek permission from the court first. Other categories have to apply to the court for permission to issue an application for a child arrangements order.

What is a CAFCASS Family Court Adviser?

A “Family Court Adviser” is what CAFCASS call their court appointed social workers.

What does a Family Court Adviser do?

According to the CAFCASS website, Family Court Advisers work directly with vulnerable children and families to advise the family courts on the best course of action for the child/young person.

Family Court Advisers work with local authorities, parents, relatives and the courts and tries to reach an understanding of what the child needs, wants and feels.

They provide case analysis and recommendations to the court as to the best arrangements for children taking into account a number of criteria which includes the welfare checklist as set out in the Children Act 1989 (see below for more detail on this).

Is this the same as a children’s guardian?

No, a children’s guardian is a CAFCASS officer, but they are appointed to represent a child in proceedings, and they appoint a solicitor to represent the children.

If a child is of sufficient age and understanding they can instruct a solicitor direct to represent their views.

What is the difference between CAFCASS and social services?

Whilst both services are involved in the protection of children, CAFCASS is an independent service appointed specifically to assist the Family Court. They only work during court proceedings, whether they are public or private and they do not become involved in families outside of litigation with the exception is family assistance orders, where they can remain involved with a family for 12 months post the proceedings having ended. Social services are a public body charged with protecting children and vulnerable adults in all areas of life, not just during court proceedings. Each local council in the UK has a social services department.

What is the CAFCASS age 12 rule?

Something we get asked a lot about is the “CAFCASS age 12 rule” which people seem to believe means whatever a child aged twelve or older wants in terms of arrangements to spend time with their parents, is likely to happen, because of their age and level of understanding. This is untrue.

As part of any welfare report if a child is old enough to verbalise their views, then CAFCASS will obtain these, and they will be included in their welfare report. The court does take a child’s wishes and feelings into account when considering the welfare checklist, but that does not mean that those wishes and feelings will be determinative of a particular outcome. For example, if a child said they wanted to stop receiving an education (whether they are in school or being home schooled), most parents and judges would not accept that, because it is unlikely to be in the child’s best interests not to receive an education. Not all children know what is best for them.

Moreover, a child aged eight, for example, might have the maturity and level of understanding that a twelve-year-old might have and so the court may take this into account when carrying out their assessment of what is in the best interests of the child.

What is a Section 7 report?

A “Section 7” report refers to section 7 of the Children Act 1989 which provides that “a court considering any question with respect to a child under this Act may ask an officer of the service or ask a local authority to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report”.

The court can request a Section 7 welfare report which will inform the court of the child’s wishes and feelings and will make a recommendation based on what they think would be in the best interests of the child.

Are Section 7 reports ordered in every case?

No. The court will only order a report if it considers it to be necessary taking into account the individual circumstances of the case. They are more commonly completed where there are welfare concerns or if the family have been previously known to social services or the police.

Who decides if a Section 7 report is needed?

CAFCASS will complete initial safeguarding checks in all cases upon receiving a copy of the court application which includes checks with the police and local authority to see if the family are known to services. They will also comment on other previous family proceedings.

CAFCASS will either recommend a Section 7 report is completed, they might ask for further information before deciding or they may be silent on the matter. The court ultimately has the final decision, but they will be guided by the recommendations of CAFCASS.

Will I receive a copy of the initial safeguarding checks?

No, you will not receive these. They are checks undertaken by CAFCASS who will record the information in a safeguarding letter.

What is a safeguarding letter?

This is the letter prepared by CAFCASS to the court following receipt of the application and following their safeguarding enquiries. It makes initial recommendations to the court following discussions with both parties. Recommendations might include parents attending a separated parents’ information programme, attending family mediation, disclosure of local authority records/police records/medical records for parents/child(ren), parents to prepare written statements, a letter/report from the children’s school/therapist/CAMHS, preparation of Scott Schedules and Statements with a fact-finding hearing to be listed, or a Section 7 report.

Will I receive a copy of the safeguarding letter?

Yes, if CAFCASS consider it is safe for both parents to receive a copy. If they are concerned about how one parent might react, especially if one parent is alleging they have received abuse/violence at the hands of the other parent, then CAFCASS reserves the right not to send the letter to the parties but to send it directly to the court.

When will I speak to CAFCASS?

CAFCASS should speak to you prior to completing their safeguarding letter so that they can put forward your views/concerns in their letter to the court. After they have tried to reach you, they will not keep attempting to contact you, so it is important, if you miss their call, that you make contact with CAFCASS to make your views known. Occasionally we have seen CAFCASS issue an addendum safeguarding letter once they have spoken to the second parent, if they were not able to reach them before filing the first letter.

Preparing for your discussion with CAFCASS

Ideally you should discuss this with a family solicitor beforehand which will help you to identify the key points you wish to get across and any areas of concern you might have. Although there are some obvious tips which everyone should adhere to:

• Speak clearly and calmly and in a child focused manner keeping them at the forefront of everything you say and never raise your voice or become argumentative. It is helpful to think about what you might say to CAFCASS if they were the judge presiding over your case. That will ensure you take a measured approach to the discussion.
• Be honest and never lie. If you’re caught in a lie it undermines your credibility so when you are telling the truth about something else, you might not be believed.
• Make a list of the key points you wish to get across. If you feel like you are being rushed, explain there is more you wish to tell them so they can they give you an email address to write to or another call to continue where you left off. This is at the discretion of the CAFCASS officer, as they are not obligated to offer your additional time.
• If there are any inaccuracies in the safeguarding letter, make CAFCASS aware. Likewise, if speaking to CAFCASS after receiving a welfare report, make sure they are aware of any errors.
• Make sure CAFCASS are aware of how much time you spend with the children and how this has progressed, or not, since you separated from the other parent.
• Denigrating the other parent is often not helpful but you should, of course, raise concerns if you have them. It is the way that you speak about those concerns that is key.
• Try and focus on any concerning behaviours and provide examples rather than name-calling the mother/father of your children, otherwise CAFCASS may form an incorrect impression. Remember they have never spoken to you before and they will form judgments after they do so.

What should CAFCASS consider before completing the Section 7 report?

The Family Court Adviser will speak with any children (dependent on age), parents/guardians, and may speak to the children’s school. They may seek disclosure of  GP, social services and police records. There might also be statements filed by the parties involved within proceedings to consider.

CAFCASS must have regard to section 1 of the Children Act 1989 which includes the welfare checklist.

They have to have regard to section 1 of the Children Act 1989 which includes the welfare checklist.

At what age will CAFCASS speak to my child?

There is not a ‘one size fits all’ answer to this question. The CAFCASS officer will consider whether it is appropriate to ask the child direct questions given their age. Often with younger children, CAFCASS will engage the child in play to try and ascertain their views without asking them directly who they’d like to live and spend time with, which can be confusing for young children.

What is the welfare checklist?

CAFCASS utilise what is called the Child Impact Assessment Framework in both private and public children proceedings. That guidance supports CAFCASS’s Child Safeguarding Policy which sets out the requirements placed on CAFCASS, it’s staff and contractors in relation to its statutory function of safeguarding and promoting the welfare of children. The framework details the procedures to be followed when completing a section 16A risk assessment, when to make a referral to children’s services, when the take urgent action to protect a child and how to respond to an allegation made against a person who works with children It also alerts staff as to the additional requirements placed upon them in complex matters such as child exploitation, radicalisation and female genital mutilation.

However, when people ask this question, what they are usually referring to is the section 7 welfare checklist. When the court is considering making, varying or discharging an order under section 8 of the Children Act or a special guardianship order/an order under Part IV of the Children Act, they must follow the welfare checklist set out below (which can be found at section 3(a)-(g) of the Children Act 1989) in assisting them to reach a decision relating to the upbringing of a child:

• The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding)
• Their physical, emotional and/or educational needs
• The likely effect on them of any change in their circumstances
• Their age, sex, background and any characteristics which the court considers relevant
• Any harm which they have suffered or are at risk of suffering
• How capable each of their parents (and any other person the court considers the question to be relevant to) is of meeting their needs
• The range of powers available to the court in the proceedings.

What happens once a Section 7 report has been prepared?

It will be sent to all parties to the proceedings and to the court so that you will have the opportunity to digest the contents before any next court hearing. Often the court will list the matter for a dispute resolution appointment to see if agreement can be reached between the parents. If agreement is possible a court order will be drawn up at that hearing. If it is not possible then the court will probably list the matter for a final hearing where the judge will decide the outcome.  

Can a judge go against the recommendation of CAFCASS?

Yes, it is unusual but not impossible. Ultimately the judge has the final say in any case and if they believe that CAFCASS have not considered the matter properly or not given appropriate weight to certain factors, they can make a decision that contradicts that of CAFCASS.