Help - My report was biased!

At First Family Law we often hear from new or prospective clients that they have received a letter / report / email from court that was biased. It’s very common to feel this way, and it may well be true, but it also might not be quite as bad as you think.

Usually a report such as a safeguarding letter or a section 7 has been produced in a situation where the parents cannot agree on something – be it the arrangements for the child, whether the child should be home schooled, have vaccinations or be allowed to leave the country for example. This means that somebody – usually a CAFCASS officer – has to consider the issues, and is likely to come back with a summary that at LEAST one of the parents is not going to like.

Does this mean the report is biased? Not necessarily. Remember again that the parents were unable to agree themselves so a third party has been tasked with making the decision. If that person returns a decision you don’t like, that doesn’t mean that the person is biased against you personally, or that they are biased against all dads / mums [delete as appropriate], it just means that in their opinion your idea was not as child focused as the other parent’s idea.

Remember that this person has had to make this recommendation because you and the other parent cannot agree.

SAFEGUARDING LETTERS

The first time this situation is likely to occur within child arrangements proceedings is as a part of the safeguarding letter. For those who have not experienced this yet the process is briefly as follows.

Upon receiving a court application the court serves the forms on CAFCASS and an officer is assigned. The officer will speak separately to both parents and on the back of these conversations (and other aspects of safeguarding not being covered here in this blog today) the safeguarding letter is produced.

The letter itself will contain a brief account of the safeguarding concerns of each parent, together with some initial advice to court. This is the point where some parents can start to assume that there is a bias in the report. Along with your concerns the concerns of the other parent will be listed. This isn’t that the CAFCASS officer is reporting these as true, or definitely having happened, it’s just an account of what was said. This is really important to take into account, and the reason a good portion of the people believe them to be the victim of a biased report.

Yes, the court will take them into account, but it wouldn’t assume them to be true, but it HAS to by law assume that there is a chance that they could be.

The child welfare principle is paramount, and if there is anything within the report that COULD be considered a safeguarding risk to the child then they cannot at that point make any orders that might put the child at risk. They just can’t – think ‘Baby P’ and other such cases. They will not want to take the risk.

The advice to court is the key part though. Often they will make some comments in this section such as:-

“Safeguarding is incomplete” – this is where some piece of information has not been received such as a social services or police report.

“Issues have been raised that the court may need to decide on via a Fact Finding Hearing” – this would be where they won’t make orders until they’re satisfied it is safe to do so. Again, this doesn’t mean they’re being biased, it just means the principle of child welfare is paramount.

“Neither party has raised any issues which would prevent the court making a contact order” – this is something which might be where despite allegations being raised by one or both parties, they are not being considered sufficient to prevent contact.

“Despite the allegations being made, contact has been continuing in the mean time” – this one is much trickier because it would end up coming down to whether the parents intend to rely on those allegations to stop contact. If contact has continued despite these allegations then it might be that the court would need to consider whether the allegations really have merit, considering that contact has been continuing in the meantime.

SECTION 7 REPORTS

This is the other most common report where parents tend to claim they are the victim of a biased CAFCASS officer or Social Worker. There is a much higher chance of it being true here because of the analysis that is found within the reports. The report author will for the first time have to consider what each parent is saying, along with input of other agencies and sometimes the children too, and try and establish what they believe is to be in the child’s best interests. This then leads to the author making recommendations that the court take very seriously and follow the majority of the time.

In their analysis and subsequent recommendations the author must reference the factors contained within the Child Welfare Checklist, and the interpretation of this in relation to the child’s own circumstances, and this is where bias can occur.

BUT the problem is the two parents don’t agree – that’s why you’re in court already. So unfortunately it is always going to be a roll of the dice to a certain extent. The two of you couldn’t agree, someone made an application to court, and the court appointed this report author to look into it and make recommendations. Ultimately, they are making the decision because you can’t. They DO have to take the Welfare Checklist into account, but they might still end up at a point where their conclusions are not what you hoped for. It doesn’t necessarily mean they were biased just because you don’t agree with them.

HOW TO CHALLENGE THE REPORT

Firstly, I would recommend not shouting about bias in the report, and instead focus on how to challenge it. Shouting about bias is very, very risky, as in all likelihood CAFCASS’ view of you will go down and if they’re still involved in your case you really don’t need that. It also means you’d be missing the point about what is best for the children whilst you go off on a tangent about bias. Instead, work out how and why the author has arrived at their conclusions and spot any weaknesses in their logic. This can form the basis of an argument in court when you’re up against Section 7 recommendations that aren’t in your favour.

Your next port of call may be the Child Welfare Checklist which I’ve mentioned several times already in this post – and rightly so as it’s hugely important. You might want to go through the list and consider whether the author has sufficiently addressed each of them and point out where they have failed to consider any particular aspect. Alternatively if you feel an aspect has had too much weight attributed to it then you could also argue for or against that.

Making these sorts of arguments are always going to offer a much more realistic chance of being successful in overturning a biased report in court than inferring a bias.

SHOULD I COMPLAIN?

Well, as above, you COULD complain, but that doesn’t necessarily mean that you SHOULD complain. I would always advise waiting until your case is over before making an official complaint about CAFCASS or a Social Worker. This is due to the negative impact it could have on your case.

Even if the author of your report WAS biased, then there will be a method, which you may need to do some detective work to identify, to their logic. I would always recommend you take some time to consider this and challenge the author in court. Your McKenzie Friend or Solicitor will be able to assist in this, if you have one.

If you don’t have a McKenzie Friend and would like an appointment to discuss your case further with, then please contact my team and I via info@firstfamilylaw.co.uk or click this link HERE

Nothing in this blog post should be treated as legal advice, and all views remain my own.

Neil Andrews

30.05.24

www.namf.co.uk

www.calendly.com/firstfamilylaw

www.firstfamilylaw.co.uk