• Gareth-Lee Smith

What you can do if Cafcass has got it wrong

Either party in an application for a child contact order might want to challenge the recommendations of a Cafcass officer. This short article is intended to explain the purpose of challenging the recommendations of Cafcass, how it can be successfully achieved, and why it is best to instruct an expert like me to do this on your behalf.


Why challenge the Cafcass officer?


Cafcass officers are experts in childcare issues in child contact disputes. By the time the case reaches the final hearing they will have:


  • Obtained safeguarding information from the police and social services to see if any issues arise.


  • Interviewed both mother and father (and grandparents, if the application is by them).


  • Spoken with the child or children to ask them about their wishes and feelings (if they are old enough).


  • Observed younger children in the care of the primary carer.


  • Used all of the evidence at their disposal to come to a recommendation for the child or children involved.


The court will place considerable weight upon the professional opinions and recommendations of Cafcass officers. Ultimately, it is the court that makes the decision – but the court must have a good reason to make a decision different to the recommendation given.


If the Cafcass officer’s recommendation is not challenged, or if it is not challenged effectively, then the court is very likely to make an order in the terms that the Cafcass officer suggests. This is the reason why it is essential to challenge the Cafcass Officer if you want the court to make a different order.


How should the Cafcass officer be challenged?


Once the Section 7 report has been written by the Cafcass officer and sent to the parties there will be a court hearing – usually called a “Dispute Resolution Appointment” (DRA) or a directions hearing. Both parties will be expected to tell the court if they accept the recommendations of Cafcass, and – if not – the basis of the rejection of those recommendations.


If you want to dispute the conclusions of a Section 7 report and the recommendations of the Cafcass officer then you will undoubtedly want that to take place straightaway. However, in practice that cannot happen. The court will usually then list the case for a final hearing and will order that the Cafcass officer must attend. That final hearing – usually some weeks or months later – will be the occasion when the Cafcass officer’s conclusions can be challenged.


At the final hearing the Cafcass officer will be called to give live evidence. Each party will be permitted to ask questions of the Cafcass officer. This will be your opportunity to challenge those recommendations – by asking questions in cross-examination.

If you are challenging the recommendations of Cafcass then, of course, you would hope for your questions to lead to concessions that s/he has got it wrong. However, even if the Cafcass officer stands by the report it does not mean that the court will automatically make the order recommended. If the judge (or bench of magistrates) thinks that your questions expose a flaw in the recommendations then a different order may be made.


The sorts of flaws that you might look to expose in asking questions of the Cafcass officer are:


  • Assumptions affecting the recommendation were made which were, in fact, wrong.

  • The reasoning of the Cafcass officer is not logical or does not make sense based upon all of the evidence.

  • The Cafcass officer placed too much weight on some evidence, not enough weight on other evidence, or both.

  • The Cafcass officer stepped outside his/her competence and reached conclusions on matters falling outside his/her expertise; eg in relation to diagnoses of mental health conditions, in relation to recovery from substance abuse.


Why do you need a barrister to do this for you?

It is incredibly difficult to persuade a court that a Cafcass officer has made the wrong recommendation. Firstly, it is almost unheard of for an officer to be challenged and then accept that he or she got the recommendation wrong. Most of the time that is for very good reason – the recommendation is entirely sound. But on the rare occasion that a Cafcass officer has got something wrong it is quite usual for them to stick to their guns. That’s not surprising – they’re only human.

Unrepresented parties find it particularly difficult to challenge Cafcass officers. Sometimes it’s a case of not asking the right questions. I have also been at final hearings where a party has very clearly stated they disagreed with the Cafcass report, but attended court without any questions at all to ask because they didn’t know what to ask. On other occasions parties have focused too much on issues that they think are relevant but the court doesn’t – things like child maintenance, unproven allegations regarding substance abuse, or unproven allegations of domestic violence.

Barristers like me, however, are trained in the art of advocacy. I know the right questions to ask, when to ask them, and how they should be asked. I know what the key issues are that the court wants to hear about, and I make sure that the questions and answers they hear go to those issues.

You only get once chance at a final hearing to make the best case that you possibly can. You need somebody to fight your corner using all the skill and expertise they have at their disposal. You can instruct a barrister, like me, to represent you at a final hearing. You don’t need a solicitor, and you’ll pay a fixed fee for the work that I do.

If you want to talk about instructing me to represent you at a final hearing, or to help you with any other part of a family law case you’re involved in, then please contact me by clicking here and filling in my contact form. I would love to hear from you and tell you how I can help you.

If you want to see my chambers profile then please click here. If you want to read about some of the cases I have been involved in then please click here.

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