Family business

The Interim Guidance issued by the president of the Family Division on 30 July 2009 is the culmination of an initiative led by the senior family judiciary '“ to which both the Courts Service and Cafcass are parties '“ to address the increasing delays from Cafcass. It sets out short-term measures which are to be reviewed in March 2010, although it also includes permanent elements of good practice.

Where there is a backlog of overdue reports, the courts along with Cafcass will review the cases concerned. Is it possible to direct a refinement of the issues for the report ordered under section 7 of the Children Act 1989, abandon the request because of a change in the child's circumstances or bring the matter back before the court for further directions?

The aim is to reduce the backlog by prioritising the cases based upon the child's current welfare needs. Practitioners, therefore, should not just wait for a report, but anticipate the questions the court may address; either by cooperation between the parties, or on the return date, or by requesting an early review.

Robust management of new cases

New cases call for robust case management from district judges and legal advisers.

The First Hearing of a Dispute Resolution Appointment (FHDRA), which Cafcass attends, is central to the process. The safeguarding checks should be available and, if so, consideration will be given to whether any risk assessment is required. If they are not available, there may have to be an adjournment but questions can be asked in anticipation (e.g. have the parties previous convictions? Has there been Social Services involvement?) and the answers recorded.

The issues must be defined and, together with a realistic timetable, recorded on the face of the order. It is no longer permissible just to say that the dispute is over residence or contact. Requests for general section 7 reports are not going to be allowed. Any section 7 report must be issue focused on the face of the order (so there will be no need for a referral form). When practitioners draft an order following an FHDRA or hearing, it is vital to record, usually as a preamble, all relevant issues and timetabling.

Approach following first hearing

Where an agreement is reached, orders will not be approved without confirmation recorded on the order that safeguarding checks have been completed and that Cafcass' safeguarding duty (i.e. risk identification or assessment work) under section 16A of the Children Act is not engaged. If the checks are not available, the case will have to be adjourned to a fixed date; although the parties' further attendance may be excused if these checks are clear.

If agreement was not reached, is there another way of resolving the outstanding issues? Mediation? Parenting classes? Limited supported/supervised contact as a trial? Referral to Social Services? Judges, legal advisers, Cafcass and practitioners should have details of these services and contact details readily to hand.

If a report is necessary, it must be issue-focused and strictly timetabled. The table below details the expected maximum timescales (although local conditions will vary).

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Fact-finding hearings

In cases where domestic violence is raised as an issue, there must be compliance with the president's practice direction: 'Residence and Contact Orders: Domestic Violence and Harm', 14 January 2009.

Before directing a finding-of-fact hearing the court must consider:

• the nature of any allegation or admission of domestic violence and the extent to which any domestic violence (admitted or proved) would be relevant in determining the terms of any residence or contact order; and
• whether or not a wishes and feelings report is appropriate in a domestic violence case before a findings of fact hearing is ordered.

Rule 9.5 guardian

These are very resource intensive and should only be appointed in rare cases of significant difficulty with a firm Cafcass recommendation. The president's direction of 5 April 2004 must be followed. Are there alternatives? A risk assessment? A referral to Social Services? Expert evidence?

Addendum reports

These should now be ordered only in the following strictly limited circumstances:

• a contact monitoring request under section 11H (2) of the Children Act is not appropriate;
• there is a recommendation from the officer preparing the report;
• clarification is still required.

The order should record on its face the issues to be addressed. A short time frame of between six and eight weeks is expected and any report should be limited to two sides of A4.

The luxury of a generalised all-embracing section 7 report is no longer available. Resources are limited and society has moved on. Section 16A of the Children Act imposes a statutory obligation on Cafcass to undertake risk assessments where they are required. There are training issues, parenting classes, anger management programmes, contact activities, monitoring orders and more to assist parents.

Firm case management by the district judge or legal adviser in partnership with Cafcass at the FHDRA is vital and the cooperation of all parties and their representatives is required to ensure that these sensitive, difficult and important disputes are resolved in a manner which promotes and enhances the welfare of the children concerned.

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