Advising the court where there is a dispute over which country four siblings should live in, further complicated by the question over whether the children have retained habitual residence in the country where they currently live, all forms part of a day's work for Sarah Vivian, enhanced family court adviser (FCA) from the high court team (HCT), and Penny Logan, Cafcass legal principal lawyer.
Both have worked at Cafcass for a number of years and are well versed in the legal and international intricacies that can arise in Hague convention cases. Joint working between the high court team and Cafcass legal is a small and unique feature of the Cafcass service and fundamental to progressing cases that feature international, medical and more unusual legal issues.
Sarah began her time at Cafcass in what was called the Cafcass legal and special casework team, where practitioners not only practised social work but also undertook the majority of their own legal work.
Over the years the practitioners have been amalgamated into one team that concentrates on high court cases – the high court team.
While local Cafcass teams still cover high court cases, the high court team caters, with quick response and turnaround, to the needs of the high court directly and is called upon when there are legal or international complexities at play in a case. "The court can call us up requesting our attendance for a hearing the same day or sometimes within days," says Sarah.
They are the only team in Cafcass that covers the whole of England. The team comprises two enhanced practitioners and nine FCAs who will pick up most cases with an international element, such as Hague cases, all London based international parental orders (dealing with surrogacy cases) and all medical cases (although in some cases which are long-running, these may be passed to a local team, where appropriate, who can do the work on the ground more readily).
The HCT can also advise local teams where there are complex legal angles which come under the HCT's expertise. In the past when cases involving issues such as forced marriage came to the high court, the high court team would often become involved. However, as awareness of these issues has increased, both local courts and therefore local teams are aware of the risk factors and dynamics of such cases and they are now usually allocated within Cafcass teams local to where the child lives. This makes sense as often there is the need to work closely with the family and other agencies which is best done by a guardian local to the child.
The HCT needs to have a "have a pretty full legal knowledge" and are often well equipped for dealing with cases without specialist input. However, the legal complexities which arise often require input from Cafcass legal, a team of five in-house lawyers.
In addition to representing children in high court cases, the team can provide separate legal representation for children's guardians across Cafcass where appropriate, act as advocates to the court, issue regular legal updates for the organisation, run a legal helpline for Cafcass practitioners and discuss cases with independent reviewing officers, as well as legal advice to Cafcass in non-family areas of law. The two teams have worked together closely over the years.
It is the knowledge, team work and mutual respect for one another that has been built up to which Sarah attributes their success: "We all know each other well and the lawyers often know how each of us [FCAS] will approach a case."
This is something that goes both ways. Talking of a recent Hague case, Penny Logan says: "The case is a powerful example of how we work together. Sarah [Vivian] could not attend the crucial hearing due to unforeseen circumstances. By taking early and full instructions from Sarah I felt very affirmed by her voice in my head reflecting her views."
The case is also an example of where a solid respect for one another's professional opinions resulted in a strong voice for the children they work with.
This model of joint work is one that is well known by the high court circuit, which includes judges, QCs, barristers and solicitors. Sarah explains that as the team is small, the work is known well at court. "They know what they are going to get from us and that we are working to have a positive impact on the case and ultimately for the child."
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