The family court is frequently tasked with determining applications under section 8 of the Children Act 1989 (“the Act”).
However, with competing positions, interests and allegations, how is the court to determine, for example, with whom the child should live, or whether one parent should be prevented from taking certain steps they would ordinarily be entitled to take? Such orders naturally and necessarily infringe on the rights a parent would normally enjoy by virtue of their parental responsibility and are therefore serious orders with significant consequences for the child and their parents.
How does the court go about making such important decision? The court normally orders the production of a welfare report under section 7 of the Act, which provides:
“7 Welfare reports.
(1) A court considering any question with respect to a child under this Act may—
(a) ask an officer of the Service or a Welsh family proceedings officer; or
(b) ask a local authority to arrange for—
(i) an officer of the authority; or
(ii) such other person (other than an officer of the Service or a Welsh family proceedings officer) as the authority considers appropriate,
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.”
Frequently, but not exclusively, Cafcass are tasked with producing the report[1]. The role of Cafcass is outlined on their website:
“We independently advise the family courts about what is safe for children and in their best interests. We focus on their needs, wishes and feelings, making sure that children’s voices are heard and are at the heart of the family court’s thinking and decision making. Our duty is to safeguard and promote the welfare of children going through the family justice system.” [2]
The aim of the section 7 report is to establish what is happening for the subject child, to analyse their situation and, applying the welfare checklist, make recommendations in their best interests. Therefore the advice given by Cafcass in a section 7 report is of central importance to the court in reaching its decision; ultimately they are the independent professionals who give recommendations.
The court therefore rightly places a great amount of reliance on the section 7 report when deciding what orders, if any, to make. This was highlighted by Thorpe LJ in Re W (residence) [1999] 3 FCR 274:
“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.”
However, the section 7 report is not the final word as the court is always the ultimate arbiter of the welfare best interests of any child. In Scott v Scott [1986] 2 FLR 320 Dillon LJ highlighted the point, noting that the role of Cafcass is to:
“…investigate the circumstances of the child or children concerned and all the important figures in their lives, so as to provide the court with reliable factual observations and factual details which will be the base on which a Judge can form his own opinion.” (emphasis added).
Therefore, the question is when can a court depart from the recommendations of a Cafcass officer?
Firstly, the court should have an evidential basis to justify a departure from the recommendations of the section 7 report. In Re B (Care: Expert Witnesses) [1996] 1 FLR 667, Ward LJ stated:
“The expert advises but the Judge decides. The Judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court, which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the Judge suspends judicial belief simply because the evidence is given by an expert.”
And Butler-Sloss LJ added:
“An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the Judge to give reasons for disagreeing with experts’ conclusions or recommendations. That, this Judge did. A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes.” (emphasis added).
Secondly, Butler-Sloss LJ highlights the requirement to give reasons when recommendations are not followed, pursuant to the authorities of W v W (A Minor: Custody Appeal) [1988] 2 FLR 505 and Re W (Residence) [1999] 2 FLR 390, which were subsequently confirmed in Re R (Residence Order) [2010] 1 FLR 509 where Ward LJ stated at paragraph 36:
“Mr Hepher draws our attention to Re W (Residence) [1999] 2 FLR 390 at 395 where Thorpe LJ said:
“… Authority has established clearly, since at least the decision of this Court in W v W (A Minor: Custody Appeal) [1988] 2 FLR 505, 513, that judges are not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure.”
Thirdly, Re R also deals with the important issue of whether the court is required to explore with the Cafcass Officer in oral evidence any issues they may have with their recommendations and any potential departure they may have in mind.
The decision of the court was not unanimous on the issue with Ward LJ dissenting. Rix LJ and Moore-Bick LJ concluded that, unless there are strong reasons to do otherwise, in a report with clear recommendations that a judge should hear from the Cafcass officer before reaching a different conclusion. This follows the earlier decision of Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354 which “emphasises the importance of the judge testing any misgivings that he may have developed from the written report of the welfare officer in the witness box.”[3]
In Re R Rix LJ stated at paragraph 59:
“Similarly, I consider that the judge has erred in rejecting Dr Cochrane’s conclusions without hearing Dr Cochrane for himself. It is widely recognised in the authorities that this should not happen if it can be avoided. Thus in Re CB (Access: Attendance of Court Welfare Officer) [1995] 1 FLR 622 at 629(CA), Purchas LJ said:
‘In cases where there are clear-cut recommendations and warnings such as those present in the second report, as indeed there were in the first report, in my judgment, it is wrong for a judge to proceed to form conclusions directly contrary to such recommendations without availing himself of the opportunity of receiving further assistance from the court welfare officer in the form of evidence. It is open to the judge to adjourn the case and demand the presence of the court welfare officer. The court welfare officer may vary his opinion in the light of the evidence or in the light of points put to him by the judge or, alternatively, he may hold his opinions. Whichever event occurs, the judge, having availed himself of the opportunity of receiving the further evidence, may then make his decision applying his own discretion. But to apply his discretion without availing himself of that opportunity is, in my judgment, a defective exercise of discretion.’
In Ward LJ’s dissenting judgment on this issue, he interpreted Re CB as recognising that it is a matter of discretion as to whether court needs oral evidence from Cafcass[4]. He also highlighted the practical difficulties of have a Cafcass officer available every time to give oral evidence, referencing the potential delays and “procedural straitjacket”[5] mentioned by Hale J in Re C (Section 8 Order: Court Welfare Officer) [1995] 1 FLR 617.
However, Rix LJ addressed the decision of Re C at paragraph 60:
“In Re C (Section 8 Order: Court Welfare Officer) [1995] 1 FLR 617, the judge upheld the status quo (residence with the mother) in accordance with (and not contrary to) the slight preference of the court welfare officer, but the complaint of the father was that he should not have done so without adjourning to permit the officer to attend. However, the judge had been able to see the teenage boy in question to obtain his own views. This court dismissed the appeal, upholding the judge’s exercise of discretion not to adjourn. Hale J said that where a report was without any firm recommendation in any particular direction, it was unnecessary to adjourn and it would have been open to the judge to conduct his own evaluation of the relevant considerations and to weigh them slightly differently, even in favour of the father, without the presence of the court officer. She added (at 620):
‘Thus the case of Re CB cannot be a hard-and-fast rule of law. Procedural straitjackets in cases of this kind would be most undesirable, especially in the light of the balancing act which is required by the paramount consideration of the child’s welfare and the provisions as to delay in s 1(2). Many factors will have to be taken into account in the exercise of the court’s discretion. These will include how much further assistance the court welfare officer can give, and the extent to which it would be safe and proper to depart from any recommendations made.’
Rix LJ upheld the principle espoused by Hale J in Re CB that in marginal cases, without clear recommendations in either direction, the court is entitled to conduct its own evaluation and reach its own conclusions without hearing from the Cafcass officer. He appears to have concluded that this is not inconsistent with Re CB which requires the court to hear from the Cafcass officer should they look to depart from “clear cut recommendations”. In doing so, Rix LJ highlighted the dichotomy the court must draw between marginal cases and those with firm recommendations in order to determine whether oral evidence from the Cafcass officer should be called upon before departing from the recommendations.
The authorities recognise that there is not an absolute rule when it comes to hearing oral evidence from a Cafcass Officer (or not) when considering making an order contrary to their recommendations. It seems the firmer the recommendation and the more significant the departure, the greater the need becomes for the court to hear oral evidence from the Cafcass officer.
Conclusion
It remains unusual for the views of Cafcass to be significantly departed from. It is notable that all of these cases were decided a number of years ago. It is a settled legal position.
The court therefore must (and clearly should) place a large amount of reliance on the recommendations of Cafcass in coming to decisions in cases. It is open to the court in these cases to come to a different conclusion, provided that the reason for the departure can be clearly explained, based on evidence and realistically having heard evidence on the point to test any misgivings about the section 7 report.
[1] Alternatively it may be a social worker employed by the local authority. However, for the purposes and remainder of this article I will refer only to Cafcass or a Cafcass Family Court Advisor).
[2] Cafcass website as of September 2025
[3] Thorpe LJ in Re W (Residence) [1999] 2 FLR 390 at 395
[4] Paragraph 40
[5] Paragraph 41
