Success story
By Iblal IqbalA new Cafcass report had recommended ending a father’s midweek overnight with his son, and he feared his order had gone. He asked us whether Cafcass can overrule a court order. We explained who decides, and guided him on answering the report.
An order that had worked for two years
Two years earlier, the court had approved a child arrangements order the parents agreed. Their son’s home was with his mother, and he spent every other weekend at his father’s. Every Wednesday he also stayed overnight and went to school from there.
Then the father moved further away. His son’s mother applied to vary the order, saying Thursday mornings had become a rush. At the first hearing, the court ordered a Cafcass section 7 report on the boy’s wishes and the midweek nights.
The report recommended swapping the Wednesday overnight for an after-school tea. It said the school run took about an hour and the boy was often late on Thursdays. It also proposed an earlier Sunday return, as the boy had asked. Reading the Cafcass report, the father felt someone had already decided. Should he stop collecting his son on Wednesdays?
Can Cafcass overrule a court order?
No. Cafcass advises, and the judge decides. Under section 12(1)(b) of the Criminal Justice and Court Services Act 2000, one of its functions is to give advice to the court, as our guide to the role of Cafcass explains.
Under section 7 of the Children Act 1989, a court may ask a Cafcass officer to report on a child’s welfare. Section 7(4) lets the court take account of the report, so far as it is relevant. Varying the order remains a decision for the court under sections 8 and 10. Until a judge changes it, the existing order binds both parents.
The child’s welfare is the court’s paramount consideration under section 1(1). As the father opposed the change, the section 1(3) welfare checklist applied, including the boy’s wishes and feelings and the likely effect of any change. Section 1(2A) tells the court to presume, unless the contrary is shown, that involving a parent furthers the child’s welfare, so long as that parent’s involvement would not put the child at risk of harm. Section 1(2B) adds that this means involvement of some kind, not any particular division of time.
Under rule 16.33(5) of the Family Procedure Rules, a party may also question the officer about the advice given.
How we guided his reply to the Cafcass report
First, we advised him to keep to the order, Wednesday nights included. Stopping early would have changed his son’s routine before any judge decided.
Next, we checked the report against the facts. Two points rested on mistakes. The drive to school took about 35 minutes, where the report said an hour. His son’s attendance record showed no late marks on a Thursday all term.
We then helped him prepare his statement in reply, which he filed by the court’s deadline. It accepted most of the report, including what his son had told the officer. Beside each mistake it set the evidence: route timings, the attendance record and his Wednesday work rota. It made no criticism of the mother.
Under Practice Direction 12B, the author of a section 7 report attends the dispute resolution appointment only if the court directs it. There, he asked the court to direct the officer to give evidence at the final hearing, naming his two points. We helped him prepare a few calm questions, such as whether she had seen the attendance record.
What the judge kept and changed
At the final hearing, the officer accepted that she had not seen the attendance record when she wrote the report, and that her worry about lateness came from the longer journey. The Sunday point, his son’s own wish, still stood.
The judge followed that part of the Cafcass recommendation and explained why the rest did not fit the evidence. The Wednesday overnight and alternate weekends stayed, and Sunday handover moved from six o’clock to four.
Details are changed for privacy. Each case is decided on its own evidence, and yours may end differently.
If a Cafcass report recommends less time
Before the officer calls, read our guide to preparing for a Cafcass interview. Once the Cafcass report arrives, see disagreeing with Cafcass. Then, this week:
Find your statement deadline and the next hearing date in the last order.
Cafcass cannot overrule a court order, so keep to the current order in full until a judge changes it.
Gather documents that test the report’s facts, such as school records, travel times and messages. Keep originals, and do not delete or alter anything.
Make no new written arrangement with the other parent before taking advice.
Rule 16.33(3) makes the Cafcass report confidential: keep it private and post nothing about the case online.
If the other parent stops following the order in the meantime, raise it with the court at once. After a final order, either parent can apply to vary it if life changes.
“A Cafcass report is advice to the judge, and the existing order stands until the judge decides. Read the report twice: once for what your child has said, and once for facts you can check. Correct wrong facts with documents and leave your child’s views alone. Do not discuss the report with your child or ask what they told the officer, because that puts them in the middle.”
Hannah Overton, Complex Children Specialist, Kabir Family Law
Worried about a Cafcass recommendation?
If a Cafcass recommendation has left you afraid for your time with your child, speak to us before you reply. Your first consultation with us is free and confidential. Read how we prepare these success stories.
The legal issue
Two years earlier, separated parents had agreed a child arrangements order, which the court approved. Their son's home was with his mother; he spent every other weekend, and every Wednesday night, with his father. After the father moved further away, the mother applied to vary the order, saying Thursday school mornings had become a rush. The court ordered a Cafcass section 7 report on the boy's wishes and the midweek nights. The report recommended replacing the Wednesday overnight with an after-school tea, relying on a school run of about an hour and on the boy being late on Thursdays. It also proposed an earlier Sunday return, which the boy had asked for. The father feared the report had already cut his time. He asked whether Cafcass could overrule the court order, and whether he should stop the Wednesday nights.
The law this rests on
- Criminal Justice and Court Services Act 2000 s.12(1)(b): in family proceedings in which the welfare of children (other than children ordinarily resident in Wales) is or may be in question, it is a function of Cafcass to give advice to any court about any application made to it in those proceedings.
- Children Act 1989 s.7(1): a court considering any question with respect to a child under the Act may ask an officer of the Service (a Cafcass officer) to report to the court on matters relating to the child's welfare.
- Children Act 1989 s.7(4): the court may take account of any statement in the report, and any evidence given about the matters in it, so far as it is relevant to the question the court is considering.
- Children Act 1989 s.8(1) and (2): a child arrangements order regulates with whom, and when, a child is to live, spend time or otherwise have contact; a section 8 order includes an order varying or discharging it.
- Children Act 1989 s.10(1) and (4)(a): the court may make a section 8 order in family proceedings; any parent is entitled to apply for one.
- Children Act 1989 s.1(1): the child's welfare is the court's paramount consideration.
- Children Act 1989 s.1(3) and (4)(a): where the variation of a section 8 order is opposed by a party, the court must have regard to the welfare checklist, including (a) the child's ascertainable wishes and feelings in the light of age and understanding and (c) the likely effect of any change in circumstances.
- Children Act 1989 s.1(2A), (2B) and (6): as respects a parent who can be involved in the child's life in a way that does not put the child at risk of suffering harm, the court presumes, unless the contrary is shown, that involvement of that parent in the child's life will further the child's welfare; involvement means involvement of some kind, direct or indirect, but not any particular division of the child's time.
- Family Procedure Rules r.12.12(2): the court may give directions about the timetable and the filing of evidence.
- FPR r.16.33(3): a welfare report to the court is confidential.
- FPR r.16.33(5): a party may question the officer about oral or written advice tendered by that officer to the court.
- Practice Direction 12G para 2.1: a party may communicate any information relating to the proceedings to a lay adviser or McKenzie Friend to obtain advice or assistance in relation to the proceedings.
- Practice Direction 12B para 14.13: the court should direct which specific welfare matters a section 7 report is to address, and a direction for the Cafcass officer to attend court will not be made without first considering why attendance is necessary and on what issues.
- PD12B para 19.2: the author of the section 7 report attends the dispute resolution appointment only if directed to do so by the court.
- PD12B para 19.3: at the dispute resolution appointment the court identifies the evidence to be heard at the final hearing and gives final case management directions, including the filing of further evidence.
- Practice Direction 16A para 9.4(a): the officer attends hearings as directed by the court.
How we approached it
We advised him that Cafcass advises and the court decides, and that the existing order bound both parents until a judge changed it, so he kept to it in full. We checked the report against the facts and found two points that rested on mistakes: the drive to school took about 35 minutes, and the school's attendance record showed no late marks on a Thursday that term. We helped him prepare his statement in reply, which he filed by the date the court set. It accepted most of the report and set the route timings, the attendance record and his work rota beside each mistaken point, with no criticism of the mother. At the dispute resolution appointment, with our guidance, he asked the court to direct the officer to give evidence at the final hearing and explained the two issues. We helped him prepare short, calm questions for her.
The outcome
At the final hearing the officer accepted that she had not seen the attendance record when she wrote the report, and that her concern about lateness came from the longer travel time. She kept one point: the boy wanted to be home earlier on Sunday evenings before school. The judge followed that part of the recommendation and explained why the rest did not fit the evidence. The Wednesday overnight and the alternate weekends stayed, with Sunday handover moved from six o'clock to four. Each case is decided on its own evidence, and another family's may end differently.
What to take from this
- A Cafcass report is advice to the court. Varying a child arrangements order is a decision for the judge, so a Cafcass recommendation cannot overrule a court order.
- Until the judge decides, keep to the existing order in full.
- Check the report against the facts. Answer factual errors with documents, and accept the parts that are fair.
- You may question the officer about the advice in the report (FPR r.16.33(5)). If you need the officer at a hearing, ask the court to direct it and explain why, and on which issues.
- Note the date your statement in reply is due and the date of the next hearing.
- Keep the originals of school records, travel times, rotas and messages, and do not delete or alter anything.
- The report is confidential (FPR r.16.33(3)). Share it only as the rules allow, such as with an adviser helping you (PD12G para 2.1), never post about it, and make no new written arrangement with the other parent before taking advice.
- The child's welfare is the court's paramount consideration (Children Act 1989 s.1(1)).
Checked and approved for publication by Hannah Overton.
Last reviewed .
