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The implementation of s 120 of the Adoption and Children Act 2002 (definition of harm) in January 2005 amended the definition of harm contained in the Children Act 1989. The revised definition applies to all s 8 applications. Revised forms were introduced, allowing parties to tick a box on the form to indicate if they believe the child(ren) have suffered or are at risk of suffering serious harm.
Following discussions between Her Majesty's Court Service (HMCS), the Children and Family Court Advisory and Support Service (CAFCASS) and the judiciary, it was agreed that the court would send CAFCASS a copy of every s 8 application on the day of issue, the purpose of which is to alert CAFCASS to any risk of harm to the child(ren). On receipt of the forms, CAFCASS will carry out a range of background checks on the applicant and/or the respondent to the case. Such checks will be internal, with domestic violence units, childrens services or with the police, dependant on the level of harm indicated on the forms.
However, there is nothing on the forms to inform parties that checks may be carried out. Following concerns raised by CAFCASS about this, discussions took place to investigate how to put the information into the public domain. The Court Service is updating the Children Act leaflets, the Notice of Hearing and, temporarily (until the forms are changed), is adding a leaflet to the s 8 application forms to notify parties that copies of forms will be sent to CAFCASS and that background checks may be made.
Meanwhile, people who approach solicitors, mediators and advisers for help should be informed that if they apply to the court for a s 8 order and indicate there is a risk of harm to the child either from themselves or another person, then it is possible that CAFCASS will carry out background safety checks in line with their child protection procedures.
The Red Book is the acknowledged authority on practice and procedure