The Guardian’s behaviour during the preparation of reports for the family court case
14. By way of background, Cafcass is a non- departmental public body, sponsored by the Ministry of Justice. Its role is to safeguard and promote the welfare of children going through the family justice system. Cafcass operate within the law set by Parliament (Criminal Justice and Court Services Act 2000) in discharging their duties to the court.
15. To put this complaint, and our decision, into context, it may help if we explain more about the role of a Cafcass Guardian.
16. Cafcass does not make decisions about who a child should live, or have contact, with. Instead, it helps the court makes those decisions. In most cases, it does this by appointing a Family Court Advisor (FCA) who will work with the family and write a report on what, in their opinion, is in the child’s best interests. As part of this, the FCA is required, where possible, to take the child’s view into account. However, they do this from an independent standpoint which means the views they express in the report are not written on behalf of any of the parties involved (including the child).
17. In some cases where the circumstances in child arrangement applications are complicated, the court may feel the child needs to be attached to the proceedings. This means the court intends to give equal weight to the child’s views as well as their parents. In such cases, the court will appoint a children’s Guardian whose role is to represent the child directly (rather than commenting on what may be in their best interests), and this will involve the Guardian preparing a section 16.4 report for the court. They will also instruct a solicitor to represent the child during the proceedings.
18. Whilst the FCA is responsible to Cafcass for their professional conduct, they are responsible to the court for their professional judgement. This would include the enquiries they make, the conversations they deem to be necessary with each party, the analysis provided in their reports, and the opinions and recommendations given to the court, as these are all determined by a FCA’s professional judgement.
19. For this reason, our office’s position is that any complaint about a FCA’s professional judgement should be made or have been made to the court wherever it is or was possible to do so. For this reason, we have decided not to take any further action on this part of the complaint.
20. Whilst the nature and tone of language is often subjective, we have looked at the content of emails sent to Miss A by Cafcass in order to identify whether there was any cause for concern about the professional conduct of the FCA or their colleagues in their contacts with her.
21. We can see Cafcass deemed the number of emails sent to them by Miss A to be unmanageable, and that as a result of this it placed restrictions on her contact, to be limited to one email a week and clearly labelled ‘weekly email’ in the subject line. We can also see the communication with her about the contact it would accept was direct and to the point, and that it reiterated on several occasions how she could make contact with them and when. We recognise Miss A interpreted this communication to be berating and impolite, but we consider the contacts to be in line with our Ombudsman Principles of being customer focused and proportionate- in which we expect to see organisations communicate using clear language that people can understand and is appropriate and proportionate to the circumstances. For these reasons we have decided not to take any further action on this part of Miss A’s complaint.
22. Additionally, we should also explain that our offices are independent of the organisations we investigate and of their day-to-day operational running. Whilst we are often able to make recommendations when things have gone wrong, such as apologies and service improvements, we are unable to make any recommendations of disciplinary or other action against an individual, as this is a matter for their employers and/ or professional regulators. For legal reasons, we are also unable to recommend that a court appointed FCA be replaced or to recommend any party changes evidence they have provided to the court. For these reasons we would not have been able to achieve the outcomes sought by Miss A in any event.
23. We recognise our decision is unlikely to have given Miss A the outcome she was seeking when she approached us, however, we hope our explanation for the reasons for our decision reassure her we have considered her complaint as far as we are able to do so. We wish her the best for the future.