Z (A Child) (Child arrangements order), Re [2026] EWFC 187 (B)

Case No TR25P00266[2026] EWFC 187 (B)
IN THE FAMILY COURT AT TRURO
Date 30 June 2026
Courts of Justice, Edward St, Truro TR1 2PB
Before
District Judge Field
Between
MApplicantFRespondent
Mr Sam Elliott (instructed by Coodes LLP) for applicantMr James Rees (instructed by Stephen Scown) for RespondentHearing Hearing date: 29 and 30 June 2026
Approved JudgmentThis judgment was handed down orally at 2.30pm on 30 June 2026This judgment was delivered in private. The judge has given leave for this version of thejudgment to be published on condition that (irrespective of what is contained in thejudgment) in any published version of the judgment the anonymity of the parties and theirfamily must be strictly preserved. All persons, including representatives of the media,must ensure that this condition is strictly complied with. Failure to do so will be acontempt of court.District Judge Field:
[1]This is my judgment in private law proceedings concerning Z, a girl now aged 9. The application before the court is the mother’s application for a child arrangements order specifying that Z should live with her. The father seeks a shared care arrangement.[2]This judgment has been handed down as a written judgment because some of the submissions made on behalf of the father touch upon aspects of CAFCASS policy and procedure which are of wider importance, and because the time estimate for the final hearing was sufficient to allow for a written judgment.

Background

[3]The parties are Z’s mother and father. They separated in early 2025 following the end of a long relationship.[4]Initially following the end of their relationship, the mother and the father remained living together, with the mother sleeping separately in the lounge. During this time, the parties were working towards a shared care type arrangement.[5]In April 2025, the mother reported to the police that she had discovered the father was recording her in the home without her knowledge using a Ring doorbell camera. The mother and the father continued to live together and, on 1 June 2025, before the police had taken any action to investigate the first report, the mother found a further camera being used to film in the lounge, where she had been sleeping. This time it was a mobile phone with an application installed called AlfredCamera. The mother made a further report to the police.[6]This resulted in the father being arrested by the police and ultimately charged with stalking. The father admitted recording the mother but denied the charge of stalking. He was made the subject of police bail conditions which prevented him from attending the family home or contacting the mother. The charge of stalking remains outstanding and is due to go to trial shortly, having been delayed from May of this year.[7]In July 2025, the mother made an application for a prohibited steps order to prevent the removal of Z from her care or anyone she had entrusted her to, and also a child arrangements order.[8]The case first came before me for an urgent hearing on 29 July 2025 to consider the mother’s application for a prohibited steps order. The father offered undertakings in the terms sought and I accepted those undertakings and did not make a prohibited steps order.[9]More significantly, by the time of that hearing, the parties had agreed interim arrangements whereby Z would live with the mother and spend time with the father on alternate weekends from Friday to Sunday. The order recorded that agreement as a recital.[10]The case returned to court for the First Hearing Dispute Resolution Appointment on 8 September 2025, by which time the CAFCASS Safeguarding Letter was available, although it was not sent to the parties in advance of the hearing “as this may escalate risk”.[11]The Safeguarding Letter recounted the matters set out above concerning the father recording the mother at home. It set out the mother’s account of how time with the father was impacting upon Z. She told Cafcass that Z cries a lot following contact, presents as anxious before contact, and had told her that “my heart feels like it is broke and cant be fixed because daddy is being mean’ and that ‘I haven’t felt happy for ages’. …‘if this is life I don’t want it anymore” (sic).[12]The Safeguarding Letter also recorded that the father made counter allegations of domestic abuse against the mother including that the mother:a. was controlling over his appearance;b. was financially abusive;c. made threats of violence towards him, including whilst holding a knife; andd. took Z with her to a beach where she knew the father was on a date.[13]The father also raised concerns over the mother’s alcohol consumption and mental health.[14]The Safeguarding Letter described how both parties “make reports of domestic abuse with high risk indicators”. In relation to the father’s concerns in respect of the mother’s mental health and alcohol consumption, it said “If [the mother] has had mental health challenges this would be a proportionate reaction to relationship breakdown and experiences she is reporting to have had as a result of [the father’s] behaviour. It is also not unusual for people to drink socially and at times to excess. This may have more recently formed part of an unhealthy coping mechanism”.[15]Given the Safeguarding Letter records there being “high risk indicators” for abuse by bothparties, CAFCASS’s advice to court was surprisingly one sided. It recommended that “Special measures should be put in place for all hearings moving forward to protect [the mother]” (emphasis added). It recommended that Z should live with the mother and not spend time (supervised or otherwise) with the father.[16]At the FHDRA, the parties maintained their previous agreement that, notwithstanding the recommendations in the Safeguarding Letter. Z should continue to spend alternate weekends with the father. They also agreed that a fact-finding hearing was not necessary and proportionate because:a. The father admitted to having recorded the mother in the home; and in any eventb. Neither party considered that their allegations, even if proven, should be a barrier to significant unsupervised overnight contact.[17]The court recorded the parties’ agreement concerning contact as an agreed interim child arrangements order, and ordered CAFCASS to prepare a section 7 report.[18]That order precipitated two actions by CAFCASS:a. First, they made a child protection referral to the local authority concerning the safety of the agreed contact arrangements ordered by the court;b. Second they filed a section 16A risk assessment with the court recording CAFCASS’ concerns and the referral made to the Local Authority.[19]The Local Authority took no action in relation to the referral and CAFCASS proceeded with the preparation of the Section 7 report.[20]In the intervening period, contact continued as ordered previously but in the meantime the father fell into dispute with Z’s school concerning the extent to which they had adequately involved him and kept him informed of matters relating to Z’s education. I understand that this resulted in the father making a formal complaint which the father says was upheld. I have not seen a copy of the complaint or the response, but I have seen three thick spiral bound binders which the father brought to court to demonstrate the complaint. At this juncture it is relevant to note that whilst the mother does not work at Z’s school, she does work within the same trust which is overseen by the same chief executive.[21]A further development during this period was that the father’s bail conditions came to an end. In response to those bail conditions ending, the mother made an application for a non molestation order and an occupation order. An order was made without notice to the applicant due to the impending end of the bail conditions. The father subsequently filed a statement in which he confirmed that, without making any admissions, he did not oppose the continuation of that order.[22]Ms Claire Eddy was appointed as the welfare officer to prepare the section 7 report. Her enquiries, investigations and recommendations are addressed in more detail later in this judgment, but in short, she recommended that the interim arrangements be made final, with some small adjustments for holiday periods.[23]At the Dispute Resolution Appointment on 16 April 2026, the father confirmed he did not accept the recommendations in the Section 7 Report and that he would be seeking an order for 50/50 shared care. The case was set down for a 2 day final hearing which concluded in this judgment.

The Parties’ Positions

[24]The mother accepts the recommendations within the section 7 report. She says that the previous attempts at shared care were distressing for Z. In particular she says Z found “toing and froing” between the parents difficult and that Z also finds longer periods away from the mother upsetting. In this way, she says that neither the 2/2/3 alternating pattern, nor the week on week off pattern contended for by the father would be in Z’s best interests.[25]The mother contends that a continuation of the interim arrangements is in line with Z’s expressed wishes and feelings. She denies that these wishes and feelings are the product of any influence by her or her family, whether intentional or otherwise.[26]The father takes significant issue with both the recommendations within the section 7 report and the process by which it has been prepared. He is highly critical of CAFCASS and what he perceives as bias in the way they have approached the case. He says that:a. CAFCASS acted improperly by making Z the subject of child protection referral in response to the parties complying with a court order for interim contact;b. In doing so at the outset of the case, CAFCASS have shown themselves to have already been against him at that early stage in proceedings;c. CAFCASS have disregarded his own allegations of domestic abuse and failed properly investigate them;d. Notwithstanding the absence of a fact-finding hearing, CAFCASS have accepted the veracity of the mother’s account of the relationship and rejected the father, and in doing so have usurped the court’s role as the arbiter of facts;e. In the absence of a separate fact find, CAFCASS have used a CAFCASS produced tool (the “Safety of Spending Time Arrangements Tool”) to assess the case. He says that reliance on that tool is unfair and unsafe because the report neither annexes the tool, sets out what information was entered into it, nor exactly what its output was and how it has influenced the recommendations within the report. As a result, the father says that he is prevented from mounting an effective challenge to the tool and the report.f. CAFCASS have incorrectly concluded that in a case of high parental conflict with a lack of co-operation and trust, shared care is not appropriate. He says this is incorrect as a statement of law and relies upon the cases of re B (Children)(Removal from Jurisdiction: Enforcement of Contact Order) [2015] EWCA Civ 1302, Re R (children) (shared residence order) [2005] All ER (D) 238 (Apr) and A v A and others (children) (shared residence order) [2004] EWHC 142 (Fam).[27]The father says as a consequence, the court should not only depart from the Section 7 report, but disregard it entirely. He says that either the court should order 50/50 shared care or else direct the appointment of an independent social worker.

The Evidence

[28]I had a bundle of 226 pages containing, amongst other things:a. The Section 7 Report;b. The S16A Risk Assessment;c. A statement from the mother in response to the Section 7 Report dated 2 April 2026d. An undated statement from the father in response to the Section 7 Report;e. A further statement from the mother dated 8 May 2026 in reply to certain matters raised within the father’s statementf. A statement from the paternal grandmother dated 28 May 2026g. Statements from each of the parties in connection with the Family Law Act 1996 proceedings[29]I have also had regard to the safeguarding letter which had been inadvertently omitted from the bundle.[30]Both parties gave oral evidence. At an early stage in the hearing there was an issue raised as to whether oral evidence from the parties would be necessary, probative or proportionate.[31]The father’s position was firmly and resolutely that he wanted to give evidence, although as it transpired, I think in truth what he wanted was to ensure that the mother was cross examined.[32]I concluded that I would allow oral evidence from both parties. There was sufficient time within the listing to allow for cross examination. The father’s position was that the section 7 report should be disregarded, in which case my own assessment of the parties would be aided by hearing oral evidence. Finally, the father’s position was, in essence, that he had not been listened to throughout. To refuse to hear his oral evidence would only reinforce that view. If the court wants the parties to accept and uphold the long term arrangements determined at final hearings, it is particularly important that both parties feel they have had a fair hearing.

The Mother

[33]The cross examination of the mother focused on the existence of hostility towards the father from the mother and her family, which Z might be aware of.[34]In this sense the mother was placed in a difficult position. Having sworn an oath to tell the truth, she was asked to give an account of how she and her own mother personally view the father.[35]She was prepared to accept that her mother had referred to the father as “a twat”, although that was confirmed by a text message from the maternal grandmother to the mother which the mother had disclosed. She denied that she used words like that about the father and in particular that she had done so around Z.[36]She also acknowledged that she and her mother did harbour some hostility towards the father, although she emphasised that this was caused by father’s own behaviours. She was prepared to accept that it was possible that Z could have picked up on that hostility, she did not believe that she had in fact done so.[37]The mother struggled to identify positive features about the father, beyond that he loves Z and is in a position to take her on day trips.[38]However, she also gave a compelling account that she wanted Z to have a positive relationship with the father, and that is consistent with her having agreed to significant contact from the outset notwithstanding the concerns raised by CAFCASS with the court and the local authority.[39]She also made a particularly telling observation at the conclusion of her evidence that that what she was doing was doing was giving a frank and honest account under oath to the court, and this did not reflect the way in which she spoke about the father at home.[40]Before moving on to address the father’s evidence, I need to address one final aspect of the case as was put to the mother to some extent and certainly advanced about her. That is that she was, in effect, a sophisticated and informed manipulator. It was said that the mother knew the system and how best to play it. She knew that by raising allegations of domestic abuse, not seeking a fact finding and agreeing to limited but substantial unsupervised contact, she would benefit from having the status as a victim of domestic abuse whilst being praised for taking a reasonable and pragmatic approach to contact. A less sophisticated manipulator would have refused any contact.[41]The foundation for that allegation appears to be that she is a teacher and therefore she is familiar with the safeguarding ecosystem. It was said that she was therefore in a particular position to both influence CAFCASS, with her knowledge of their processes, and to influence Z with her skills as a teacher.[42]Beyond her status as a teacher, there is simply no sufficient evidence, whether in the form of witness evidence or documentary evidence to support that contention. I do not know what role the mother holds within her school’s safeguarding structure, nor what prior involvement with CAFCASS she has had.[43]The very closest the father came to advancing any evidence to support that contention is in his witness statement when he wrote “I understand that Z was referred to the school nurse after the Applicant told CAFCASS that she had said something along the lines of “if this is life, then I don’t want it”. I understand that the Applicant had previously said about another child in her class making a similar statement.”[44]The father significantly expanded upon this in his own cross examination, after the mother gave evidence and when she had no opportunity to reply. He explained that the mother had previously had professional involvement with a child who had said these words to her and she had subsequently had to give some form of account of these words to CAFCASS in the context of a child arrangements dispute. He suggested that she was drawing on this experience to now produce the same result in this case.[45]If this were the case that father wished to advance, it ought to have been spelt out in his witness statement and, possibly, appropriate directions for disclosure should have been sought. There was simply insufficient evidence to support that contention at the final hearing.[46]My assessment of the mother’s evidence was that she does not like the father and she finds him difficult to deal with. She is also circumspect about the quality of the time he spends with Z and of the care which he provides her with. She nonetheless genuinely wants Z to have a positive relationship with the father. Her desire for this likely results partially from an understanding that it is generally in the best interests of a child to have a meaningful relationship with both parents, and also from an understanding that to do otherwise would likely result in greater conflict with the father and store up emotional problems for Z in the future.

The Father

[47]The father had the benefit of hearing the mother’s evidence before he did so. When he was asked about the mother’s qualities, he was far more effusive, at least to begin with.[48]Notably, his praise of the mother was strictly limited to the career she had built as a teacher and her role as a financial provider for the family. The picture the father sought to build was that the mother had often been away from the home and that as a result, by agreement, his career had been sacrificed and he had been the primary carer. In this way, the father used the opportunity to praise the mother, as a means to highlight why he was deserving of shared care, and why the mother was not deserving of the amount of care she currently provides to Z.[49]When asked about why he had instructed his own barrister to ask the mother about her employment, he gave a similar account. He said that the mother had allowed him to become the primary carer, that it was him who had stopped his accountancy exams, that it was him who had changed jobs to work from home and that it was him who had cared for Z when the mother had gone out to work early and come back late.[50]The father was asked about why he had been so keen to give oral evidence. His answer was he felt he had been interrogated by CAFCASS but he didn’t feel that his allegations had ever been put to the mother. In this way his desire to give evidence, was more about ensuring that the mother was cross examined, than about him giving evidence himself.[51]The way in which the father spoke about Z’s school was also noteworthy. He was insistent about referring to the staff at Z’s school as the mother’s “friends and colleagues”, despite the fact that she does not work at the same school. It is apparent from the three spiral bound ring binders that the father was keen to display, that he has embarked on what appears to have been a substantial complaint about the school. That is perhaps interesting in circumstances where he believes that the mother had an affair with the head teacher at her own school and he has chosen to contact the Chief Executive Officer of the Trust about that affair.[52]When asked about his admitted actions in recording the mother in the home and what he thought the impact of this would have been on the mother, his response was illuminating. He said he thought that it would cause her to feel scared and vulnerable, but he then went on to explain that this would have been due to her being worried that he would have evidence of the abuse perpetrated by her against him, rather than due to it being an invasion of her privacy to have been covertly filmed in a room after they separated. It is worth pausing at this point to remember that the father did not seek to pursue allegations of domestic abuse against the mother within these proceedings and did not seek a fact-finding hearing.[53]The father was able to make some concession about his own flaws. He accepted that he could see things as black and white and that he could be rigid in his thinking. He also described himself as not being as driven as the mother and not earning as much money, which he appeared to consider as one of his negative qualities.[54]There are some parts of the documentary evidence which are usefully addressed at the same time as the father’s evidence. They are the messages which the father has sent to the mother, the maternal grandmother and others concerning the mother’s alleged affair.[55]In one message to the mother on 8 May 2025 the father wrote: “With respect I don’t think you are able to talk about what [Z] needs. She should’ve had BOTH parents love each other and would work through any issues in the relationship not bail out at the first bit of attention from another person”.[56]On 6 April 2025, the father wrote to the partner of a friend of the mother:
“I told [the mother] I was aware about her affair with [her head teacher] from December. Your going to have some spicy gossip when [the mother’s friend] gets home”
[57]On the same day he wrote to the maternal grandmother:
“I have made [the mother] aware that I know she has been having an affair with her head teacher at school since December 2024…I believe [the mother is going through a huge midlife crisis but I can no longer be the one to support her, which I have been doing knowing all about the affair…She needed to step up and be called out on her leaving the house most nights and lying about where she is going and getting home at gone 11pm.”
[58]Taking the written evidence, oral evidence and documentary evidence as a whole, the impression given of the father is that his perspective of the circumstances in which he finds himself are:a. That he is the parent who is deserving of having caring responsibilities for Z;b. That it is he who has made sacrifices for Z and so he has earned that right;c. By contrast the mother has put her career first and so should not now position herself as the primary carer;[59]The father views himself as the victim, both of the mother’s alleged affair, in these proceedings and in relation to the camera recordings. He is resentful of the circumstances and has sought to embarrass the mother by writing to friends and family about the alleged affair.[60]He is unable to recognise that the act of covertly recording the mother in her home, is in and of itself an act of domestic abuse and that this would have a harmful impact on the mother and by extension on Z.

Claire Eddy – Section 7 Report Writer

[61]Claire Eddy prepared the section 7 report having had the benefit of meeting with Z and both parents.[62]She explains in her report that, since the father had raised counter allegations of domestic abuse, she had prepared on the basis that she would need to make use of Cafcass domestic abuse aides during the interviews with both parents, but that the father had confirmed he did not wish to discuss those allegations further, citing concerns about jeopardising the police investigation of the allegations against him. She explains that as result, those practice aides were only deployed in the interview with the mother.[63]Ms Eddy sets out that having met with Z at the mother’s home, she was able to obtain evidence of her wishes and feelings including:a. That she spoke positively about both her parents and both sets of grandparents;b. That she feels the amount of time she currently sees the father is “just about right”;c. That she felt sad during the attempt at shared care arrangements because it was “too much time away from mummy”d. That she had found transitions during shared care difficult because ‘she “didn’t really feel at home” as she was moving around so much’e. That she worried about the father knowing her views because she “doesn’t want to upset him”;f. “she finds it hard to tell him when she is feeling sad, unhappy, or missing mummy, because she is worried about hurting his feelings or making him upset”g. She worries about things changing and about the father hearing her views;[64]Ms Eddy also seeks to address the issue of domestic abuse within the context of PD12J. She refers not only to the behaviours admitted by the father (namely the covert recording of the mother at home) but also other behaviours which were neither admitted nor the subject of a fact finding judgment including:a. “Overall, [the mother] experiences [the father’s] current actions as a pattern of counter allegations, the withdrawal of consent for things like [Z’s] school trips, and the difficulties in the ability to progress matters with regards to the family home, as a continuation of coercive control reflective of the same dynamics [the mother] experienced in the relationship”; andb. “the wider monitoring behaviours [the mother] describes”;[65]At times the section 7 report goes further than describing the mother’s reports and experiences of alleged behaviours, and appears to adopt them as facts: a. “Given the history,the escalation of alleged coercive behaviours and the ongoing emotional impact upon the mother , it is understandable that she experiences these handovers as highly anxiety provoking” (emphasis added).[66]Ms Eddy explains in the Section 7 Report that she has made use of certain “tools” used by CAFCASS. In particular:
“In helping me consider what is in Z’s best interests regarding the contact arrangements between her and the father going forward, I have also completed the Safety of Spending Time Arrangements tool to ensure that my decision-making is clearly evidenced, structured and grounded in an assessment of risk and protective factors. This tool has supported a balanced analysis of both the emotional risks identified within the parental relationship and the clear benefits to Z of maintaining her relationship with her father. While the assessment highlights risks arising from the parental dynamics, particularly the emotional pressure Z experiences and the impact of the ongoing conflict between her parents, it is also evident that Z enjoys her relationship with her father, values the time she spends with him, and wishes for this relationship to continue. Maintaining this positive connection is therefore important for Z’s identity, continuity of family relationships and emotional development, provided that any time she spends with him can be managed in a safe, structured and predictable way that supports her emotional wellbeing and does not place her under additional stress or responsibility”
[67]The Section 7 report does not explain what the tool is, how it works, how it was developed or whether it is supported by academic research. Nor does it annex a copy of the tool. The report does not explain what information Ms Eddy fed into the tool, nor exactly what output it produced.[68]Ms Eddy concludes that “taking all aspects of the welfare checklist into account, [Z’s] wishes and feelings, her emotional needs, her need for stability, the harm experienced through exposure to her parents’ relationship, and the likely impact of any changes, it is my professional view that Z should continue to live with her mother, with time spent with her father remaining at the current alternate-weekend arrangement.”[69]She concludes that during holiday time, an additional night could be added to the alternate weekends with the father, so as to avoiding increasing transitions or having extended time away from the mother, whilst also allowing additional time with the father.[70]In rejecting the father’s shared care proposal, she explains that she does not consider such an arrangement is “is realistic or in [Z’s] best interests”, on account that such an arrangement requires “a very high level of cooperation, trust and clear communication between parents in order to provide consistency and stability for the child”.[71]In cross examination by Mr Rees on behalf of the father, it was put to Ms Eddy that, through its decision to refer the family to the local authority following the FHDRA and through its approach to the father’s allegations, it had shown itself to be institutionally biased. Further, it was put to her that through its reliance on tools which were not disclosed to the parties nor the court, CAFCASS was making recommendations to the court that were not capable of proper scrutiny or challenge.[72]Ms Eddy dealt with these criticisms professionally and ably. In relation to the referral to the Local Authority, whilst that was not a decision she had personally been involved in, she explained that where CAFCASS considers that there is a risk of harm it is important that “all the appropriate parties are made aware”.[73]In relation to the criticism levelled at the use of the Safety of Spending Time Arrangements Tool, Ms Eddy candidly accepted that she could understand the criticisms made in relation to their transparency and the fairness of the use of such tools. She was clear however that “how much I use them is down to my discretion as a practitioner”. She was keen to make clear that she had met with Z prior to making use of the tool and that she was satisfied that the recommendations she had made were her own.[74]My own impression from Ms Eddy’s evidence was that she felt obliged to make use of the CAFCASS tools, but that she nonetheless felt empowered and able to give her own professional opinion and judgment in any given case. She rejected therefore that any unfairness in the use of the tool should taint her entire report or judgment.[75]She was also asked questions by Mr Rees about whether Z’s expressed wishes and feelings were the result of her saying what is expected of her in the mother’s home. Ms Eddy rejected that proposition. She made clear that Z was spoken to alone and that Z’s wishes and feelings had been expressed consistently, both to herself and to others. She did not consider that Z’s views were the product of any outside influence.

The Law

[76]Pursuant to section 1(1) of the Children Act 1989, when deciding what child arrangements order to make, the children’s welfare shall be the court’s paramount consideration. I am required by section 1(3) of the Children Act 1989 to have particular regard to the factors listed at section 1(3)(a)-(g). I refer to each of those factors in my analysis below.[77]Where there are allegations of domestic abuse which have not been admitted and which have not been the subject of a fact finding judgment, it is particularly important to have regard to the principles in Re B (Care Proceedings : Standard of Proof )[2008] UKHL 35 Para 2 – “There is no room for finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not”.[78]Perhaps of more direct relevance to the case I am dealing with are the statements of Lady Hale in Re B when addressing the approach taken by the Judge at first instance. In that case the Judge at first instance had concluded:
“I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges… … on an approach founded on evidence and reasoning, and not on suspicion and/or concern, I am unable to conclude that there is no real possibility that Mr B sexually abused R as she asserts or substantially as she asserts and I have therefore concluded that there is a real possibility that he did.”
[79]In respect of this approach, Lady Hale explained “if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt… In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence.”[80]In relation to the status and weight to be given to Section 7 reports, this is set out in the Court of Appeal cases of Re P [1991] 1 FLR 337 and Re J (Children) (Residence: Expert Evidence) [2001] 2 F.C.R. 44. The court must have regard to the recommendations contained within any section 7 report, but the court is not bound by those recommendations. Where the court departs from the recommendations within a section 7 report, it must give reasons.

Analysis – Whether to Depart From the Section 7 Report

[81]The father contends that the section 7 report is tainted or infected by institutional bias and is insufficiently transparent to allow for proper scrutiny, such that the only way to proceed which would be fair to the father would be to disregard the section 7 report entirely.[82]There are very real problems with the way in which CAFCASS has approached this case. They are problems which are not limited to the present case. Safeguarding Letter[83]It is not controversial to say that domestic abuse is most commonly perpetrated by men against women. But it is also true that there are cases in which domestic abuse is perpetrated by women against men. When preparing safeguarding letters, the role of CAFCASS is, as set out in paragraph 13 of PD12B, to ensure that the court has all the available safeguarding information so as to allow it to make interim orders which it can be satisfied safely manage any risks which may be present, having regard to the principles in PD12J.[84]It is not the role of CAFCASS at that stage, or indeed any stage, to determine which parties’ allegations are true or are more likely to be true. They may give advice as to which allegations are more serious and would present the most risk moving forwards.[85]The fact that the police are or are not investigating any given allegation is of very limited relevance. The fact that police are investigating or have charged an offence may indicate that the police consider there is evidence to be pursued which might alert the court to the same line of inquiry. But the fact the police are investigating an allegation does not mean it is true or that it is likely to be true. Similarly, if the police are not investigating, this does not mean the allegation is untrue or unlikely to be true.[86]Allegations and counter allegations must be presented neutrally and impartially. To do otherwise risks actual bias or the appearance of bias. Where there are allegations and counter allegations and CAFCASS are giving recommendations as to interim arrangements, and they feel that notwithstanding the existence of cross allegations, one parent should have contact but the other should not, CAFCASS need to be able to explain the difference in approach, and the explanation should not be based on their own assessment of the veracity of the allegations. If they do not feel able to make recommendations for interim contact where there are counter allegations they should decline to do so and leave it to be addressed by the court at the FHDRA.[87]The approach taken to the preparation of the safeguarding letter is of significant importance. It not only has a bearing on the direction that the case will take and case management decisions that will be made, it also significantly affects the extent to which the parties believe the family court process is a fair one. This can be particularly important where one party already has view that systems and institutions are weighted against them. Local Authority Referral[88]For the purposes of this judgment, I am less critical of the referral to the local authority. I have not heard submissions concerning the statutory criteria for safeguarding referrals. Neither have I seen the referral itself, nor the local authority’s response.[89]In those circumstances, I will decline to say that the making of a referral to the local authority where the parties are complying with an interim contact order is necessarily inappropriate. There may be times where, bearing in mind that that court is dealing with a private dispute between parents, the court feels that the least worse option is that the children should spend time with both parents notwithstanding allegations and counter allegations, and where the case falls short of justifying the direction of a section 37 report. In these circumstances it may be that there can properly be referral to the local authority with a view to obtaining early help or some other intervention from the local authority which falls short of care proceedings. The use of CAFCASS Tools in Section 7 reports[90]There are many “tools” that the court sees referred to in section 7 reports. Some are more transparent and readily understandable, such as those that use pictures and diagrams to extract children’s wishes and feelings and are often copied and pasted into reports. These can be a very effective means both of the officer obtaining those views and the court getting close to a first hand experience of those views.[91]Other tools such as the “Safety of Spending Time Arrangements Tool” appear far less satisfactory. The criticisms made by Mr Rees are all well founded. The tool is not publicly available, at least so far as Ms Eddy, counsel or myself are aware. They are not annexed to the report. We do not know what information the tools requires to be input, nor how CAFCASS deal with this in circumstances where facts are disputed and not proven.[92]If the tool requires the input of disputed and unproven facts, then it sits very uneasily, if not incompatibly, with the principles in Re B.[93]Section 7 reports are not expert reports within the meaning of the rules. As such they are governed by Part 16 and PD16 of the FPR, rather than Part 25. However, it is useful to draw upon what is required of an expert report so as to ensure that it is capable of proper scrutiny and challenge.[94]Paragraph 9.1(b) of PD25B requires that an expert report must:
“(b) include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed”
[95]Paragraph 9.1(f)(iii) of PD25B requires that when expressing an opinion to the court, the expert must “(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community”[96]In the context of civil proceedings, para 3.2 of PD35 requires that an expert report must:
“give details of any literature or other material which has been relied on in making the report;”
[97]Further, Paragraph 4 of that PD explains that “Under rule 35.9 the court may direct a party with access to information, which is not reasonably available to another party to serve on that other party a document, which records the information. The document served must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance”[98]These rules and Practice Directions underline the importance that where a person is giving an opinion to the court which may be disputed, the parties are entitled to understand the basis upon which that opinion is being given so as to enable proper scrutiny and challenge.[99]CAFCASS’s practice of making use of such tools without setting out in detail how those tools operate, how they have been developed, what research supports their use, as well as the information which is being fed into them, prevents effective scrutiny and thereby renders the recommendations within the section 7 report such liable to challenge on that basis. Application to the current case[100]In the current case, I do not feel it necessary to disregard the report in its entirety. I do consider that the preparation of the safeguarding letter was unduly partisan. It is apparent from the recommendations that the mother’s allegations were treated as being sufficient to warrant investigation and to impact safeguarding arrangements, but the father’s did not. Beyond explaining that the police were not investigating the father’s allegations, the safeguarding letter inadequately explained the difference in approach.[101]That does give the appearance of bias, but the section 7 report is prepared by a different individual, Ms Eddy.[102]I do not consider that she showed actual or apparent bias in the way she approached her report. The reason that the mother’s allegations were examined and the father’s were not, were that the father declined to provide further details by reason of those matters forming part of his defence in the criminal proceedings.[103]There are real issues in this case with the way in which CAFCASS approach undetermined allegations. The parties’ subjective experiences may often be relevant to the application of the welfare checklist, regardless of whether their subjective experience reflects the reality of what has occurred. When dealing with such subjective experiences, CAFCASS would do well to highlight that the officer acknowledges that the allegation is not proven and that is not being treated as such.[104]I have very real concerns about the transparency of the Safety of Spending Time Arrangements Tool. Without knowing what information has been entered into the tool, there is a very real possibility that its use is incompatible with Re B.[105]However, I do not consider the whole Section 7 report needs to be disregarded merely by virtue of the fact that Ms Eddy has utilised a tool. It is evident from the report and Ms Eddy’s oral evidence, that she has reached her own independent view, and that the tool has been applied as a cross check only. In effect, her recommendations rely significantly on Z’s wishes and feelings, together with her emotional needs, consideration of the impact upon her of change, the harm she has suffered by virtue of the conflict between the parents, the harm that the mother has suffered as a result of her being covertly recorded at home. She has properly applied her mind to the welfare checklist and given her recommendations. My Own Assessment of The Welfare Checklist Z’s ascertainable wishes and feelings, considered in light of her age and understanding

My Own Assessment of The Welfare Checklist

[106]Z is 9, she was 8 when she provided her views. She is young and does not, and should not, have a full understanding of the difficulties in her parents’ relationship. But she is able to understand and articulate that she: a) Likes seeing her father b) She does not like lots of transitions, c) She does not like extended times away from her mum d) She does not want things to change.[107]The court’s inquiry does not start and end with wishes and feelings. The court will depart from the wishes and feelings of a child where they are inconsistent with their best interests, where they are the product of unacceptable outside influence, or where they are based upon a misconception.[108]There is nothing inherently inconsistent between Z’s wishes and her best interests. Her preferred outcome would allow her to have a relationship of substantial quality with both parents. I do not consider that there is evidence to conclude that they are the product of influence from the mother or her family. The assertion that they are the product of sophisticated manipulation, is simply not made out.

Z’s physical, emotional and educations needs

[109]Both parents are capable of meeting these needs and the arrangement recommended by the Section 7 report would allow them to be met by the parents with appropriate support from both sets of grandparents.

The effect of a change in circumstances on Z

[110]Z has experienced a great deal of change in the last 18 months including the separation of her parents, the initial attempt at shared care and the involvement of professionals in her life, in the form of Ms Eddy. A further change would mean more disruption to Z and make her feel her wishes have been ignored, not only by the court but also by her father who she knows would learn of her wishes and feelings.[111]With regards to the prospect of an order that might provide for a progression of contact in line with Z’s wishes and feelings or which provides for a progression of contact subject to her wishes and feelings, I am not sufficiently persuaded that father would listen to Z if she expressed concerns about progression of contact. His response to this issue in oral evidence was heavily caveated. He said that if he believed that Z did not want contact to progress he would respect that. When asked what would make him believe her, he said she would need to be older.[112]On the father’s own evidence therefore, he is not presently able to accept a progression of contact that is limited and informed by Z’s wishes and feelings and which is respectful of them

Z’s age, sex and other background characteristics

[113]Beyond being a 9 year old girl, whose parents have separated in challenging and high conflict circumstances, which has overspilled to some extent into her school life, she has no particular characteristics which affect the application of the checklist.

Any harm which Z has suffered or is at risk of suffering

[114]Z has suffered harm in two ways:a. Firstly she will, as all children are, be aware of the challenges and high conflict in her parents’ relationship. She also has her own experiences of finding it difficult to manage the father’s emotions and expectations as referred to in the section 7 report. That is harmful for a child her age. It does not mean she should not spend time with the father, but it means that the court should be respectful of her wishes generally and in particular for stability.b. Secondly, the mother has been the victim of domestic abuse through the father’s covert recording, whatever his motivations. It is an invasion of her privacy and will have been emotionally and psychologically harmful to her. The fact that the father maintains he was justified in making the recordings, and that he does not recognise that it was in and of itself harmful is a concerning feature of the case. The court is required by PD12J to consider, amongst other things “the likely behaviour during contact of the parent against whom findings are made and its effect on the child;” and “the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.”[115]That :a. the father does not recognise the impact of having recorded the mother at home;b. he feels slighted by the alleged affair;c. he feels resentful that the mother has taken away the primary care that he feels he previously had and had earned;d. he has sought to embarrass the mother at work and amongst friends, ande. he appears to draw a link between the mother and Z’s school and has been in dispute with Z’s school all suggest that there may be a risk that the father might exhibit further abusive behaviours towards the mother.[116]Notwithstanding that risk, the parties agree that contact should be unsupervised and substantial, and that those risks can be safely managed. What is not agreed is that, for instance, it would be safe to allow such arrangements to be led by Z’s wishes and feelings, or progressed gradually subject to her wishes and feelings. On the father’s own account he would not accept Z’s wishes and feelings expressed at this age. In light of this fact, and risk of further abuse by the father in future, it would not be appropriate for there to be a progression of contact in that way.

The capability of the parents

[117]Both parties have shown themselves as being capable of meeting Z’s basic needs.[118]The only lack of capability is father’s failure to recognise the inherently harmful behaviour he exhibited in making the covert recordings, which I have already addressed. Summary[119]My own assessment of the welfare checklist largely aligns with that of Ms Eddy. I have considered whether to depart from the recommendations in any small way, such as making provision for the father to provide some of the wrap around care in the week, or providing some greater time during holidays.[120]However, this would be counter to Z’s wishes and feelings as canvassed in the final paragraph of the section 7 report. In reality, to do so would only serve to satisfy the father’s dissatisfaction the maternal grandmother is providing some of the care which he did previously. This is not a good reason to depart from the recommendations in the report. I would need to be persuaded that Z’s best interests would be materially furthered by F providing that care instead. I am not satisfied it would.[121]As to Ms Eddy’s rejection of shared care, I will deal with this briefly, I do not accept that parental conflict can never be a good reason for a rejection of shared care. Where the conflict is characterised by an imbalance of parental power and particularly where the court considers that one parent does not and will not see the other parent as an equal, shared care can be a good antidote. This is not that case.[122]For all these reasons I adopt the recommendations in the section 7 report.[123]The only adjustments I would make are:a. to include provision for the Christmas arrangements to alternate from year to year so that both parents have the opportunity to establish and enjoy Christmas traditions with Z andb. To make provision for additional contact on mother’s day and fathers day respectively, to the extent they do not fall on the parties’ respective weekends.[124]I will invite further submissions on the form of order and the detail of any ancillary matters.