For those battling with the evil shambles that is CAFCASS, this recent judgement might give you something to watch out for in your own S7 reports, I''ve just copied the bits relating to the judgement that pertain to CAFCASS (hopefully fair usage?), please click through for the full article and judgement:
Re AZ (Child:Relocation to Poland) [2016] EWFC 8
www.familylawweek.co.uk/site.aspx?i=ed158880
From the summary by Hannah Gomersall, barrister, Coram Chambers:
As a side issue, Cobb J commented on the Family Court Adviser''s lack of analysis and expressed surprise that there was no reference to the welfare checklist. There was little consideration of the potential losses to AZ from the proposed relocation. The judge was also concerned by the Adviser''s expression of risk that the father may unlawfully retain the child in the UK and unawareness of the protections of the 1980 Hague Convention. Finally, the report used outdated language which followed Payne v Payne [2001] EWCA Civ 166 guidance, which should now be seen in the context of K v K and Re F.
And from the judgement:
Cafcass
29. In January 2015, a section 7 report was ordered on the issue of child arrangements. This report recommended regular and increasing contact for the father. The recommendations of this report were accepted by the parties. When the mother issued her application for leave to remove, the court ordered (8 October 2015) a further Cafcass report, focused upon this issue. The report in question is dated 13 January 2016. The Family Court Adviser was called to give evidence.
30. The Cafcass report recommended that the application should be granted and that the mother should be permitted to take AZ to reside in Poland. The Family Court Adviser''s recommendation includes the following passage:
"… [T]he effect on the mother being forced to stay in England would, in my opinion, be devastating. I have no doubt that her unhappiness, sense of isolation and depression, would be enhanced to a degree which could well be damaging to [AZ] whose welfare is, of course, the paramount consideration. If any single factor needs to be considered, it is that the future happiness of [AZ] will be best assured by her being brought up in a place in which the mother is not just content, but happy..… The mother is meeting all the needs of her daughter and I feel that she should be allowed to be able to do so in the future, in the area of her choice."
"I am of the opinion that the application by the mother is genuine and not motivated through selfish reasons to exclude [AZ] from her father''s life. She has provided to the court comprehensive details of the practical proposals should she be allowed to return to Poland."
31. In relation to the father, and the facilitation of his time with AZ he said this:
"I feel that he has a good relationship with [AZ] and this could continue even if she was resident in Poland; there are frequent flights that are available that would allow him to visit regularly. The extended paternal family would be able to provide extensive details of [AZ] and how she was progressing and this would go some way towards enabling the father to be aware of any progression during the period that he was not spending time with [AZ].… I am of the opinion that arrangements could be made for the father to spend time with [AZ], and the mother has offered to finance the travel costs…. I am of the opinion that the application by the mother is genuine and not motivated through selfish reasons to exclude [AZ] from her father''s life. She has provided to the court comprehensive details of the practical proposals should she be allowed to return to Poland. I am of the opinion that the mother should be allowed to return to Poland with [AZ] and that the father should be able to spend regular time with her."
32. In my view the Family Court Adviser had not conducted a sufficiently balanced (''holistic'') welfare analysis in this case with the care which I consider is necessary. In the report there is surprisingly no specific reference to the section 1(3) welfare checklist or indeed to its component parts. While understandably attaching weight to the obvious concerns about the mother''s mental health and its impact (or potential impact) on her ability to care for AZ, I had a sense that the Family Court Adviser allowed this issue to assume disproportionate significance among other important relevant (but perhaps neglected) considerations. Specifically, I felt that there was relatively limited analysis of the potential losses to AZ from the proposed relocation, and a rather uncritical acceptance of the mother''s case about the feasibility of contact. He accepted in his oral evidence (when cross-examined) that the reduction in contact would represent a "backward step" for the father and AZ, and would have a "significant bearing" on their relationship. He referred in his evidence to indirect contact, but adverted to the use of social media and WhatsApp – hardly appropriate for a child of AZ''s age. He felt that AZ should not come to England for contact until she was five years old; he was concerned about the risk of the father unlawfully retaining her here (for which he did not provide any evidence as such), and seemed unaware of the protections offered by the 1980 Hague Convention. A further matter of concern is that the Family Court Adviser used language in his report which is more redolent of the Payne v Payne guidance (which now has to be seen in the context of K v K and Re F (above)), and which may have reflected an outdated appreciation of the current law.
33. At the conclusion of his evidence, in answer to one of my questions, the Family Court Adviser told me that he did not think that the mother viewed contact between AZ and the father as an "absolute priority" – a point of obvious concern to the father (and to the court) but which was disputed by the mother. It was surprising that this important consideration had not made its way into his written report, or his analysis.
