In proceedings involving children where the welfare of the child(ren) is in question, the court is able to order a report under Section 7 of the Children Act 1989. This is called a Section 7 or a s7 report. The Section 7 report is usually written by a Children and Family Court Advisory and Support Service (CAFCASS) officer, although in some instances and where there is prior Local Authority involvement, the Local Authority will write the report.
The report will include a profile of the child(ren), the parents and any other adults involved in the proceedings and provide an analysis of the issues, proposed child arrangements, support and available orders. The author of the report will then make recommendations to the court based on their dealings with the children and parents and in some cases, having visited the property and carried out a full assessment. The report writer will have to consider the welfare checklist which is contained within Section 1 of the Children Act 1989 and taken into account by the court in every case concerning a child.
Does the court have to follow Section 7 report recommendations?
The court does not have to follow the recommendations of a Section 7 Report, but the court usually does take the recommendations into account when making its decisions – the author having been the Judge’s eyes and ears enabling them to make a decision.
The question of whether to accept or reject a recommendation of CAFCASS or the opinion of any other expert is a matter of judicial discretion which must always be exercised properly; the court may reject the conclusions of a CAFCASS report where it believes the report to be unbalanced, but it must express in its Judgment the reasoning behind this decision.
A leading case in this matter is the case of W v W (A Minor: Custody Appeal) [1988] in which it stated that judges are not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure. In addition to this, when departing from the welfare officers’ recommendation, the judge should consider all the available information. The recommendation should be explored in cross-examination by the representatives of the parties. This conclusion was echoed in the case of Re W (Residence) [1999] where the importance of the CAFCASS officer’s role was emphasised ‘Judges are hugely dependent upon the contribution that can be made by the welfare officer, who has the opportunity to visit the home and to see the grown-ups and the children in much less artificial circumstances than the judge can ever do’.
If the court decides not to follow the recommendations in the report it should question the author of that report and the CAFCASS officer/social worker should be invited to attend court to give evidence. In the case of Re A (Children: 1959 UN Declaration) [1998] the judge emphasised the importance of a judge testing any misgivings that he or she may have developed from the written report of the welfare officer in the witness box.
Should the Cafcass officer always be questioned in court if the judge decides to depart from the report?
Although it is useful and sometimes necessary to have the CAFCASS officer called to give evidence in court, this is not always the best way to proceed. In the case of Re R (A Child) [2009] it was held by the court that the CAFCASS officer does not always need to be called by the judge as the decision whether or not to follow the Section 7 report is a matter of judicial discretion, and to adjourn a court case in order for the author of the report would cause unnecessary delay. In cases where the report does not express a strong recommendation one way or the other, or where the welfare officer has suggested that matters should not change, it may not be necessary or even reasonable for the CAFCASS officer/Local Authority officer to be questioned by the judge. Ultimately, many factors will have to be taken into account in the court exercising its discretion. These will include how much further assistance the court welfare officer can give, and the extent it would be safe or proper to depart from any recommendations made.
If you require any advice or assistance in relation to children issues to include the child arrangements, please do not hesitate to contact us. Our Children team can provide specialist advice.