Challenging a section 7 CAFCASS report

Sometimes it helps to remind ourselves of the basic legal principles under which we work on a day to day basis. The recent judgment of Macdonald J in Y and E [2025] EWHC 2437 is a helpful reminder that section 7 reports are advisory, they are susceptible to challenge and their conclusions do not bind the court. 

In summary the case concerned two children aged 8 years old and 6 years old. The mother had moved with the children from X county to Y county (a distance of approximately 70 miles) without notice to the father, stating that she had received erroneous legal advice. The father remained living in X county. The Family Court Reporter (‘FCA’) had recommended that the children live with both parents but without relocation, so that they spent the weekends with the mother in Y county and they stayed with the father during the week and remained at school in X county. The Recorder, against the recommendations of the FCA, ordered that the children live with their mother from Monday morning delivery to school, until Friday evening, and live with their father from Friday evening collection after school until Monday morning delivery to school. 

The father appealed on the basis that the Recorder had:

1. Erred in rejecting the clear and consistent advice of CAFCASS
2. Placed inappropriate weight on the children’s wishes and feelings
3. Failed to consider the question of relocation holistically. 

Departing from a CAFCASS recommendation

On the first ground of appeal Macdonald J reiterated the position made clear by the authorities that a judge is required to provide reasons for why they have departed from a welfare recommendation made by the FCA (W v W (A Minor: Custody Appeal [1988] 2 FLR 505). Further he added:

1. The reasons provided for departing from the recommendation of the FCA should be clear and adequate reasons. In Re J (Residence: Expert Evidence) [2001] 2 FCR 44, Hale LJ (as she then was) made clear: 

   "It is of course well-established that, if there are professional witnesses who have been asked to advise the court by way of a section 7 report, the court should at least do those witnesses the courtesy of explaining clearly the reasons for departing from their recommendations (although it has always been acknowledged that the court has the power to do that)."

2. In Re M (A Child) [2017] EWCA Civ 2356, in which the Court of Appeal overturned a first instance decision for a mother to relocate to Colombia on the basis that the judgment had not been adequately well reasoned and there was no explanation for departing from the Cafcass recommendation, Peter Jackson LJ concluded that 

   "In a decision of this importance, the judge did not really reason her decision at all, nor faced with a sophisticated Cafcass evaluation did she give any adequate explanation for disagreeing with it".”

Macdonald J dismissed this ground of appeal. The Recorder had correctly stated that the role of the expert evidence from CAFCASS is to provide advice and an opinion to the court. The court’s role is to then decide the case. “The expert does not decide the case.” The Recorder made no criticism of the FCA, on the contrary he had found her to be an impressive witness who had carried out all of the necessary enquiries and had provided the court with a coherent view. However, as he was entitled to do, the Recorder disagreed that that view was “the most appropriate for resolving the welfare interests of the children”, and accordingly he rejected her assessment. In doing so he set out within a number of detailed paragraphs his clear and adequate reasons which can be summarised as follows:

1. Matters had moved on somewhat since the report was filed; both parents had moved house, the children were older and their wishes and feelings had solidified (they wished to live with their mother), they were more familiar with Y county, the mother’s employment uncertainty impacting her ability to spend time with the children had resolved.
2. The FCA’s recommendation for a midweek overnight contact with the mother, who lived 70 miles from the children’s school was unworkable.
3. The court placed greater weight on the wishes and feelings of the children than the FCA and placed greater weight on the negative consequences of not listening to the children and how this may in turn impact their relationship with the father.
4. In circumstances where the children were already living in two locations and were familiar with both, the Recorder considered he could give more weight to the children’s wishes and feelings. 

Wishes and feelings of the children

It is clear from the aforesaid that weight was given to the children’s wishes and feelings. The children were aged 8 and 6 years. This formed a second ground of the father’s appeal. On this second ground of appeal Macdonald J referred to the Court of Appeal judgment in Re P-S:

1. Finally, with respect to the treatment of the wishes and feelings of the children, which is the subject of Ground 2 of the grounds of appeal, in P-S (Children) [2013] EWCA Civ 223, [2013] 1 WLR 3831 at [43], the Court of Appeal stated:

   "The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive."

The Recorder had in his analysis given consideration to the children’s ages and understanding, the consistency of their views and the weight to be accorded to each child’s views. Whilst the children were young it was considered that they were old enough to express “coherent and considered views as to where they would like to live.” Given also that the children’s views were based on the existing circumstances as opposed to a hypothetical or unknown future situation, the Recorder felt able to give those views more weight. The father’s assertion that the views of the children had been influenced was rejected.

Macdonald J was satisfied that the Recorder’s analysis of the children’s wishes and feelings was balanced. Their expressed wishes and feelings were not treated as determinative, but they were underpinned by other factors that were considered as part of the overall welfare analysis, for example the children’s views of Y school and its extra-curricular activities, its walking distance from the mother’s home, the fact that staying with the father would mean a further change of home, the mother was better placed to ensure socialisation of the children, the father not having adequately promoted indirect contact. Accordingly the second ground of appeal was also dismissed. 

Internal relocation

Finally, Macdonald J in short order dismissed the contention that the Recorder had not considered the question of relocation and child arrangements holistically in accordance with Re C (Internal Relocation) [2015] EWCA Civ 1305. Macdonald J considered that the Recorder had properly compared and balanced the positions of each of the parents and the evidence he had read and heard. Accordingly this ground of appeal was also dismissed