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Who should assess non-subject children in family proceedings?

Date posted: 7 November 2019

Our Sarah Colley reports on an interesting case which considered whether CAFCASS could carry out work in relation to a child, who was not the subject of the Court proceedings.


This was a care proceedings matter in which the Father [‘F’] of the subject child [‘C’] was accused by another child [‘AB’] of sexually abusing them. AB was not a party to the proceedings nor was she involved in any other capacity.


The Local Authority involved confirmed that they would be seeking to rely upon AB’s allegations within the care proceedings. The allegations were denied by F and he therefore sought to call AB to give evidence within the case. The issue therefore arose as to whom would be responsible for speaking with AB and undertaking a Re W assessment of AB.


The Circuit Judge dealing with the case ordered CAFCASS to undertake the above work. CAFCASS objected to this due to AB not being a party to the proceedings and made written submissions to the Court asking for the direction to be discharged. CAFCASS stated that it was beyond their remit to carry out such work.


To avoid delay, the Circuit Judge discharged the direction in relation to CAFCASS and ordered an independent social worker to assess AB. The Circuit Judge also ordered for the matter to go before the Family Division Liaison Judge to look at the issue of ‘whether it is within the power of the court to request Cafcass to assist the court to undertake an assessment (including a Re W assessment) of a child involved but not the [subject] children [act] proceedings’ being considered a matter of general importance in family proceedings.”


The matter was heard before Mr Justice Keehan. The Judge considered the statutory framework under s12 of the Criminal Justice and Court Services Act 2000 [CJCSA] and also the Family Procedure Rules.


The Local Authority submitted that it was within CAFCASS’ remit to assess non-subject children in proceedings as it is the ‘function of Cafcass to “give advice to any court about any application made to it in [family] proceedings” under s12(1)(a) of the CJCSA.


CAFCASS submitted that it was not within their remit and that the wording of s12(1) of the CJCSA, which begins with, ‘In respect of family proceedings in which the welfare of children [other than children ordinarily resident in Wales] is or may be in question….’, was clear that the intention was purely for CAFCASS to assist subject children in proceedings. CAFCASS supported this position by also referring to s12(1)(c) of the CJCSA which states that CAFCASS should, “make provision for the children to be represented in such proceedings”.


The Judge determined that CAFCASS were correct and that it could not have been the intention of Parliament to place no limit on the work that CAFCASS would be expected to do in relation to children. The Judge stated that, ‘the court has no power to require Cafcass to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to undertake any work with or play any role with AB.’


If you have a care proceedings issue you need assistance with please contact Sarah on or 020 8885 7966, or for an appointment call Mavis on 020 8885 7986.