At one time, whenever a couple with children divorced it was necessary for the court to make an order concerning the custody of the children. Invariably one parent would be granted “custody, care and control” and the other would have “reasonable access”. However, for the last 20 years or so, there has been a strong emphasis on parents negotiating their own arrangements for the upbringing of their children and only resorting to the court in times of disagreement. This is known as the “no order” principle and means that the court should only make orders in respect of children when to do so would bring about a positive benefit for them.
Sadly, in practice, many parents are unable to reach an agreement and one or other of them makes an application to the court, possibly for an order stipulating where the children will reside (a “residence order”), directing how much time the children will spend with the other parent (a “contact order”) or to determine a particular issue such as how the children should be educated (a “specific issue order”). When deciding any such application the judge has got to consider what is in the best interest of the children concerned.
If an application is made for a residence or a contact order, the court will often ask for the preparation of a report by a reporting officer from the Children and Family Court Advisory and Support Service, invariably shortened to “CAFCASS officer”. CAFCASS was set up in April 2001 and its remit arises “in respect of family proceedings in which the welfare of children is or may be in question”. CAFCASS has various functions which are essentially to:
- safeguard and promote the welfare of the child;
- give advice to the court about any applications made to it in such proceedings;
- make provision for children to be represented in such proceedings;
- provide information advice and support for children and their families.
The CAFCASS officer is often viewed as the “eyes and ears” of the judge. They play a vital role in the process. The CAFCASS officer will frequently carry out enquiries, speak with the parents and children and then provide a report to the court. Often that report will contain a recommendation. It has always been the case that such reports can be of huge importance in the determination of the dispute between the parents but a study recently commissioned by CAFCASS has shown just how important these reports are. The study has revealed that the reports of family court advisers were accepted in just over 75% of cases involved in the study and that figure apparently rises to 90% if there is included cases in which there was to be a further review by the court. It is the case that the sample was not especially large (said to be 170 randomly selected residence and/or contact cases) and it may be that things vary from court to court but the message from this study does seem to be fairly consistent and reflects our own experience of such matters.