2 The role of CAFCASS
Introduction
to CAFCASS's role
7. Proceedings in which CAFCASS officers are involved
may broadly be divided into two categories: private law proceedings,
predominantly where parties (usually, but not exclusively, parents)
cannot reach agreement on the best arrangements for the child;
and public law proceedings, which concern applications for local
authority care or supervision and other care related matters.
CAFCASS officers are appointed by the Court to provide a report
and, depending on the nature of the proceedings, to fulfil the
respective functions of Children and Family Reporter, Children's
Guardian, Reporting Officer or Parental Reporter.
8. The Criminal Justice and Court Services Act 2000
provides that the primary duties of CAFCASS in respect of family
proceedings are to:
a) Safeguard and promote the welfare of the children
b) Give advice to any Court about any application
made to it in such proceedings
c) Make provision for the children to be represented
in such proceedings, and
d) Provide information, advice and other support
for the children and their families.[8]
Private
law proceedings
9. The principal role of the Children and Family
Reporter is to investigate and report on issues concerning the
welfare of children involved in disputes about residence and contact,
at the request of the court. The role has traditionally been described
as "acting as the eyes and ears of the Court." The Children
and Family Reporter may also assist parents to resolve any outstanding
areas of disagreement, if this is possible during the course of
their enquiries. CAFCASS is also responsible for the supervision
of family assistance orders when these are made.[9]
Public
law proceedings
10. The role of the children's guardian (formerly
"guardian ad litem") in public law proceedings is set
out in the Children Act 1989 and accompanying court rules.[10]
The child is a party to these proceedings; the children's guardian
represents the child, appointing and instructing the solicitor
for the child in most cases, investigating fully the child's circumstances,
advising the court about the management of the proceedings and
preparing a report advising the court on the child's interests.
In order to complete this work the guardian normally has direct
contact with the child in order to establish their wishes and
feelings, reads social services files concerning the child, interviews
members of the child's family and makes a professional assessment
of the child's welfare, sometimes with the assistance of reports
from experts.
Other proceedings
11. CAFCASS officers also act in two other types
of proceedings. In proceedings under the Adoption Act 1976 (soon
to be replaced by the Adoption and Children Act 2002), a CAFCASS
officer will act either as a Reporting Officer or as a Children's
Guardian, depending on the circumstances. CAFCASS also acts as
Parental Reporter in applications under the Human Fertilisation
and Embryology Act 1990.
CAFCASS
Legal Services and Special Casework
12. CAFCASS Legal has taken over the role previously
played by the Official Solicitor (Children's Division) in providing
confidential advice to civil courts and representing children
where there are issues of legal or moral complexity central to
their welfare. In such circumstances CAFCASS Legal will act as
the child's solicitor. Examples of circumstances where CAFCASS
Legal might become involved include cases where there are disputes
over major medical treatment, including life or death decisions,
or proceedings which raise new challenges to practice under the
Human Rights Act 1998.
CAFCASS Legal can also become involved
in complex disputes over residence and contact in private law
cases where there are concerns about the welfare of the child.
Wider responsibilities
13. CAFCASS has also been entrusted by Parliament
with additional responsibilities beyond the core service of advising
the courts in family proceedings. The new unified service was
originally proposed as simply the Children and Family Court Advisory
Service.[11]
By the time the Bill which was to set up the service was presented
to Parliament, an additional 'S', for Support, had been added
to its title. This change of title was reflected in section 12(1)(d)
of the Act, which gave CAFCASS the duty to "provide information,
advice and other support for the children and their families."
CAFCASS declares itself to have a role as a "children's champion",
making an active input to broader policy development across Government
and bringing its knowledge and independent perspective to the
development of policies to improve services for children.[12]
Role of
MCSI
14. CAFCASS is subject to inspection by the CAFCASS
Inspection Unit of HM Magistrates' Court Services Inspectorate
(MCSI). MCSI has produced a number of reports on CAFCASS since
launch, including two "overview" reports: Setting
Up, published in March 2002; and Setting a Course,
published in April this year.[13]
8 Criminal Justice and Court Services Act 2000, s
12(1) Back
9
Children Act 1989 s 16 gave courts the power to make a family
assistance order in exceptional circumstances and, with the agreement
of those adults named in the order, to assist families with any
continuing problems post-divorce. The assistance offered is defined
as voluntary. Back
10
Children Act 1989, ss 41 and 42; Family Proceedings Rules 1991,
rr 10, 11 and 11A Back
11
Single Service to Safeguard Interests of Children in Family
Courts, Lord Chancellor's Department Press Notice, 27 July
1999 Back
12
CAFCASS Corporate Plan 2003/06, p 8 Back
13
Available from www.mcsi.gov.uk Back
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