Do We Have Trial By Expert?

In a case before her in 1996, Lady Justice Butler-Schloss, shortly before she became President of the Family Division of the High Court, reminded judges that they should never lose sight of the fact that the ultimate decision was for them, particularly in cases concerning children, and not for CAFCASS or an appointed welfare officer.
Section 7 of the Children Act 1989 gives a judge the option to order a welfare report and take notice of it if he so chooses. There is no obligation to either order a report or pay regard to it but that is not always how it works in practice.

Welfare reports are nearly always ordered when it has not proved possible for parents to agree arrangements for their children. In contact and residence order applications which become contested, a CAFCASS report is the norm. Thereafter will follow a delay of at least three or four months whilst the report is prepared. Even then there can be problems. Often the report is late and further hearings have to be adjourned. If the report is not favourable to a publicly funded party their legal aid is likely to be withdrawn. They are unlikely to be able to proceed and this can be little more than trial by welfare officer.

Even should the case proceed to trial, the judge is going to be a heavily influenced by the welfare report and inclined to follow the recommendation. If the judge does not follow the welfare officers recommendation he must give written reasons which could lead to an appeal. the judge is likely to think that it is the welfare officer who has spoken to the parties and the children, visited them in their homes, spoken to the schools and is therefore in a better position than he is to make a decision.

What has to be accepted if you are involved in a dispute concerning your children is that the welfare officer is a powerful person and that you should not get on the wrong side of them. The parent who quarrels with the welfare officer and disagrees with their set principles of childcare is likely to be accused in the report of 'not being able to prioritise the needs of the children'. This stems from the inherent tendency of welfare officers to think that they know best about the care of children. This makes it very difficult to argue with them and it is near impossible to make them change their mind. Being unable to prioritise the need of children is welfare officer talk for he disagrees with me and will not do as I tell him. Going to war with an expert is unfortunately a recipe for disaster. You must seem to be on the same side.

The only real answer however to dealing with welfare officers and court-appointed experts is to avoid them altogether. When a family breaks down with young children there will be many years of care arrangements ahead. When the other parent is spoiling for a fight you must not fall into the trap of appearing as a warmonger. You must be seen as being a peacemaker and fair and reasonable with your only interest being what is best for the children. If agreement can be reached you will avoid the need for a welfare report. Cooperation at the mediation stage of the first appointment and allowing your former partner to get his or her grievances off their chest can work wonders. Take every opportunity to negotiate a settlement and remember that a negotiated settlement is likely to work better than a court enforced one.

If everything fails and you are faced with an experts report there is one important thing to remember. That is to come across as a reasonable and loving parent who will co-operate with the other parent and who is able to recognise that parents good qualities. What is sudden death to your chances of a favourable recommendation will be an attack on the other parent to the welfare officer. Not only will a list of your former partners failings as a parent or person be ignored but they will act against you as showing you to be an unreasonable person who is likely not to be co-operative and who cannot focus on the needs of the children. Remember also that the only certain way to get on the right side of a welfare officer is to agree with them. If you do not agree with the welfare officer play it cool and never lose your temper and never rant and rave at him or her.

Unfortunately there can be no doubt that at least in the lower courts there is a tendency for judges to rubberstamp a welfare officers decision. This is not how it should be.