When an application is made to court that involves children, it will be passed onto the Child and Family Court Advisory and Support Service (CAFCASS) for checks to be made. CAFCASS are responsible for looking after the safety and wellbeing of children involved in family court cases. But what background checks do they perform, and how are the results communicated to the parties and the court? This article answers these questions and more.
Do CAFCASS perform checks before the first hearing?
Before you go to court for the first time, CAFCASS are required to undertake checks on each party to see if there are any concerns. These are known as “safeguarding” checks, and highlight any issues for a child and any of the people involved in the case. This includes alcohol and drug misuse, mental health concerns, potential child abduction issues, child abuse, domestic abuse, sexual violence/abuse, and any other welfare concerns.
CAFCASS can ask anyone involved with your family, including school and healthcare providers, social care, and the police for information about you and the children. CAFCASS has access to the police national database where records of criminal convictions are held. If general checks identify areas of concern, they may ask the police to provide more detailed information.
The court will receive a copy of the safeguarding letter which can help the judge make decisions about how the case is handled and organised going forward. The safeguarding letter is also shared with all parties involved in the case, unless there is sensitive information that cannot be shared.
If there are no outstanding welfare concerns and CAFCASS and the court are satisfied, a safe agreement can be made; CAFCASS will no longer be involved in the matter. Here, both parties will be encouraged to reach an agreement between them and for it to be drafted in a “consent order”.
Does the safeguarding letter include everything?
Sometimes, information in the safeguarding letter may not include all the details you think are important, such as experience of domestic abuse. If this applies to you, then you can let the court know using form CA1. However, the court will require evidence to prove the domestic abuse allegations.
If CAFCASS has safeguarding concerns and there are welfare issues that need to be looked at further, the court will order CAFCASS to produce a Section 7 report. This often involves speaking to the child to obtain their wishes and feelings; they may also speak to other family members, teachers, health providers, and obtain more in-depth police reports, if necessary.
Every police force has their own unique procedure for requesting disclosure, meaning it is not always possible that information will be given to CAFCASS before the first hearing. In this instance, the hearing may be adjourned pending the outcome of the safeguarding checks.
Who do CAFCASS share information with?
CAFCASS may share information with:
- The court.
- Other parties in the case.
- Other trusted organisations, such as local authorities and the police.
CAFCASS will retain your information until the youngest child, in the case, is 25 years old. If you feel that anything is wrong, you can ask them to correct your information; you can also access the information held on you by CAFCASS by making a Subject Access Request. In certain circumstances, you may also have the right to object to the processing of your personal data, request that processing be restricted, or that it be erased. However, these rights are not absolute and do not apply to every case.
What sort of information might the police hold?
Whilst allegations of domestic abuse are common in family cases, many of these have not been the subject of any police report or investigation. Although there may be cases where the police have become involved in an incident, and, as a result, hold information which may help a court build up a picture of events and the relationship between the parties.
Parties to a family proceedings application should give early thought to what material is likely to be held by the police, which may become relevant within private law proceedings. You can then set out your position with documentary evidence regarding the situation.
However, the initial safeguarding checks discussed above will not provide the level of detail which can be obtained through a full disclosure request, which will not be carried out until an order has been issued by the court.
How does the court use criminal convictions when making a decision?
The existence of convictions must be weighed against the issues in the case at hand. A family court may decide to hold a fact finding hearing where conduct is in dispute and make findings of fact. It does this by looking at the evidence before it and then determines what is true and what is not true. The court must consider all the evidence put before it and will place more weight and importance on different pieces of evidence. This varies in each case, as will the significance of criminal convictions.
The overriding principle for the family court, when considering family cases, is what is in child’s best interests, which is paramount. To do this, the court looks at the welfare checklist and the available evidence in order to determine those issues and make findings of fact.
What can I do if I have a criminal conviction?
You should be honest and upfront with those dealing with your case, such as solicitors, CAFCASS, mediators, and the court. Ultimately, they will find out, so it is better if they are aware of the situation beforehand. Be prepared to disclose what convictions there are and when they occurred, what sentence or punishment was received and information about the nature of the offence. You may also want to explain the circumstances in which the offence was committed, and highlight the steps you’ve taken to change or avoid further charges.
Remember that convictions are only one piece of the evidence that will be considered by the court, and may not be relevant to the issues in the case before it.
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