A brief analysis of the Court of Appeal decision in R & Others and CAFCASS 2012
It may alarm and stagger you to learn that in some cases back in 2009, CAFCASS did not appoint a Guardian immediately to represent children in public law proceedings. (It would probably alarm and stagger you still less to learn that this was also the case in some private law proceedings, and almost certainly still is)
There were four individual cases bundled together :-
R – care proceedings began 28th June 2009 and a Guardian was allocated by CAFCASS on 15th September 2009 (the risks were of physical harm, and he was in voluntary foster care at the outset of proceedings)
E – care proceedings began 22nd December 2009 – there was a finding of fact hearing relating to physical injuries alleged to have occurred when E was just an infant. There never seems to have been a Guardian appointed. This bit (a direct quote) is astonishing even to my jaded palate.
“Therefore, other than to inform E’s parents that he was the guardian he did not participate in the case at all. He forgot to inform the court that he was the allocated guardian.”
In the words of the immortal P G Wodehouse , on reading that, I inspected my mind and found it to be boggled.
J – care proceedings began 30th October 2009 and a Guardian was appointed on 22nd March 2010 (3 weeks after a Letter Before Claim was sent by those representing the mother)
K – care proceedings began on 25th August 2009 – on 22nd March 2010 a Guardian was appointed. (Once again, 3 weeks after the Letter Before Claim was sent to CAFCASS)
The case really turns on whether CAFCASS’s duty to represent children and provide Guardians to represent children extends to a duty to do so in any one individual case, or whether it is more of an aspirational global mission statement which does not ensure that any individual child gets proper representation (note, this sentence does not purport to be in any way neutral and is strictly the author’s rather than the words of any Judge either at first )
These passages from the Court of Appeal judgment (that of Lord Justice McFarlane) illustrate the sympathy that the Court had with the Claimants argument that appointment of a Guardian is pivotal to the progress of a care case and that doing so in the early stages (when the issues are separation or not, the levels of interim contact and the shape and nature of assessments) is critical.
- I need absolutely no persuasion as to the essential merits of the complaint that lies behind the claims of each of the four children before this court or of the plea that is now made so forcefully and eloquently on their behalf. Whether one uses the words of the Inquiries that argued for the introduction of the guardian’s role, or the words of the Family Justice Review and the government’s response to it, or those of Charles J and the Divisional Court, the immense importance of the role of a children’s guardian both to the operation of the statutory scheme for protecting children from significant harm and to the quality of outcome for the individual child in each such case is hard to understate. Without, I hope, stretching the metaphor beyond its tolerance: in the tandem model it is the children’s guardian, rather than the child’s solicitor, who steers the course for the child’s representation in the proceedings. A guardian who is appointed promptly at the start of the proceedings can conduct an initial investigation of the circumstances, offer a preliminary analysis of the issues and, crucially, assist the court in crafting the case management directions which will, to a large extent, determine the course and timetable of the litigation.
- The great value to the child, the other parties and to the court of appointing a children’s guardian very promptly after the start of proceedings under CA 1989 Part IV has been readily accepted by both sides in this appeal and has, since April 2008, been a key expectation of the PLO (and now the FPR 2010, PD12A). Although CAFCASS has, understandably, carefully chosen the word ‘undesirable’ to describe the delay in appointment in the four appellants’ cases, Mr McCarthy has not in any manner sought to justify what occurred in positive terms. All are effectively agreed that the optimal outcome is for a children’s guardian to be appointed promptly in every public law child case. The points made about the importance of representation to any party, particularly one under a disability, are well made. The question raised in this appeal does not, however, concern the desirability of prompt or immediate appointment. The question for us is not one of desirability but one of statutory duty and it is whether CAFCASS has a statutory duty, owed to each individual child, to effect the prompt or immediate appointment of a children’s guardian in every such case.
- Despite the real sympathy that I have for the plea that lies behind the Appellant’s case, it is necessary to apply a legal, public law, analysis to the arguments raised and to the wording of the key statutory provisions. In doing so, where a choice of statutory construction arises, and a purposive interpretation is called for, I am plain that any purposive construction must point to the early or immediate appointment of a guardian.
But also highlight where this is going – in order to impose a duty on CAFCASS to appoint a Guardian in an individual case and do so promptly, the Court would have to find something within the statutes which creates such a duty in an individual case. If not, CAFCASS escape with the Jedi hand-wave of ‘we represent children in general, just not in this particular case, and at a time that suits us’
The Court did not find that such a statutory construction could be derived, and that the earlier decision of Mr Justice Charles in R v CAFCASS 2003
http://www.bailii.org/ew/cases/EWHC/Admin/2003/235.html remained the correct expression of the law, that there was no duty on CAFCASS in any individual case to appoint a Guardian.
There was then an attempt to argue that the failure of CAFCASS to appoint a Guardian ‘immediately’ on the commencement of proceedings or on direction from the Court led to a breach of Human Rights, variously on articles 6 or 8. This did not succeed either.
- It may well be that in one or more individual cases where there has been failure by CAFCASS to appoint a children’s guardian in a timely manner, or at all, it will be possible to conclude that there has been a breach of the Art 6 and/or Art 8 rights of the individual child before the court. Such a conclusion would, in my view, only be achievable after the completion of the trial process and after it had been evaluated as a whole so as to determine whether or not a violation of these Convention rights had taken place. We are not invited in respect of the four cases before the court to conclude that in any one of them there was an actual breach of Convention rights. It is of note that in none of the four cases did the trial court hold (or was, I suspect, invited to hold) that a breach of Arts 6 or 8 had occurred.
- To hold that, of itself, a failure to appoint a children’s guardian immediately upon being directed to do so amounts to a breach of Convention rights, would involve assuming that the judge, the other parties and, in particular, the solicitor for the child (who, we understand, is likely to have been appointed promptly) would have failed to act in a manner which, to some degree, accommodated the lack of guardian and protected the child’s rights. In proceedings under CA 1989, Part 4, the family court itself has a primary duty under the HRA 1998 to conduct its process in a manner which is compatible with the Convention. To hold, as Mr Geekie asks us to do, that a failure to appoint a guardian immediately is sufficient to establish that the proceedings as a whole are bound to be conducted in breach of Art 6 or 8 must involve the assumption that it will be beyond the capacity of the trial judge to ensure a fair trial in the absence of a guardian for any stages of the proceedings.
- The issues involved in public child care proceedings are often of the utmost importance to the parents, to the state and above all to the subject child. No one involved in these cases should be under any misapprehension that rights under ECHR Arts 6(1) and 8 will be ‘engaged’ at every stage of the process. There is a duty upon public bodies, of which CAFCASS , the local authority and the court are three, to act at all times in a manner which is compatible with the convention (HRA 1998, s 6(1)). It is against that background that CAFCASS readily accepts the duty that Charles J found lay within s 12 of the 2000 Act to appoint a children’s guardian as soon as practicable after the request is made. Although not expressly argued before him, the ECHR arguments that we have heard support the conclusion to which Charles J arrived, just as they support the conclusion of the court below in the present case. It is, however, just not possible to hold that the Appellants’ human rights arguments support the conclusion for which Mr Geekie now argues which would involve holding that in every case a failure to appoint a guardian immediately upon request would inevitably amount to a breach of Convention rights. HRA 1998, s 3 will only give this court jurisdiction to read text into a provision where the provision is not otherwise compatible with the Convention rights. Nothing short of a finding on the level I have described would make it permissible for this court to ‘read in’ to s 12 of the 2000 Act a requirement for immediate appointment which, as Charles J has held, is not otherwise present.
- Even if, contrary to the foregoing, the effect of Arts. 6 and 8 were to require the immediate appointment of a guardian in every case, it would not justify the court adopting, pursuant to HRA 1998 s.3, a different interpretation of s.12 from that which otherwise be adopted in accordance with the normal principles of statutory construction under domestic law. That is because the CJCSA 2000 contains its own mechanism for the laying down of any appropriate time limits, by means of directions under paragraph 9 of schedule 2, and any requirement as to immediate appointment of a guardian could be imposed by such directions. Compatibility with the Convention could therefore be achieved within the terms of the Act without any need to adopt a different interpretation of s.12 in order to produce such a result. The fact that the statutory mechanism would call for action by the Lord Chancellor in making the relevant directions would not be a good reason for the court to adopt a different interpretation of s.12.
- Despite fully acknowledging the very real importance of achieving the appointment of a children’s guardian for a child who is the subject of care proceedings at an early stage in every case, I am entirely satisfied that the decisions of Charles J in R v CAFCASS and of the Divisional Court in the present case are sound and correctly describe the duty upon CAFCASS under CJCSA 2000, s 12.
The battle-weary amongst you may be saying, so what? These cases were all 2009 and we know that CAFCASS were having huge problems now and that these are conquered.
I, however, am feeling uncomfortable that this case is a continuation of the green light for CAFCASS should workloads increase or staff numbers decrease in the future, to run what I’ve described in the past as a homeopathic Guardian service, where the active ingredient of a Guardian actually being involved in the case talking, reading, listening and observing becomes so dilute that there is barely any of it. It imports the ability for CAFCASS to run a sort of ‘triage’ service where they determine which cases need a Guardian straight away, and which can potter along on their own until the work-load crisis ameliorates a little.
I also feel uncomfortable than in the last two months, the family Courts have decided that family Court judges have no sway, influence, or jurisdiction over :-
(a) CAFCASS if they drag their heels appointing a Guardian, or
(b) The Legal Services Commission if they decide they don’t want to pay the costs of an assessment or want to quibble over the bill to an extent where the proceedings are catastrophically delayed whilst that is resolved, and where it is apparently okay for them to tell the President of the Family Division that they don’t come to Court when they are ordered to and just ignore those orders.
And leaving the remedy for both being judicial review for Wednesbury unreasonable individual examples (ignoring the difficulties in funding, proving, litigating and timely resolution of this, and that what is needed is general principles, not individual case resolution piece by piece, and that almost certainly the judicial review courts will quickly stamp on these sorts of cases because they are already swamped in ongoing JRs)
Although we haven’t had a case about whether the Court can make the Official Solicitor move more quickly in representing the most vulnerable in our society, I have little doubt that the outcome on that would be the same; we’re already inviting them in more and more courteous terms to do the job that they are charged with.
Whilst in the same broad period of time decided that their judicial muscles can be flexed in making LA’s pay the costs of intervenors who happen to triumph in their cases.
Is the LA now the only body who can be cheerfully pushed around by the Court? It begins to look that way.
And Justice Ryder’s recent speech on modernisation points that way too (my underlining) :-
There is a place for independent social work and forensic experts to advise on discrete issues that are outside the skill and expertise of the court or to provide an overview of different professional elements in the most complex cases but regard must be had to why those who are already witnesses before the court have not provided the evidence that is necessary and who should pay for it when it is missing.
Who on earth could he mean? Are the Courts going to order CAFCASS to pay when a report needs to be commissioned because Guardians are no longer the independent active ‘Court’s eyes and ears on the ground’ that they used to be? Or are they just going to make the LA pay for everything and blame it on poor quality social work reports? I wonder.
I suggest that the Government take half the money that is currently spent on psychologists and Independent Social Workers, and put the Guardian service back the way it was, with staff given caseloads and time to actually be the independent social work check and balance and voice of the child they were intended to be. The reason for the proliferation of experts is because we no longer allow Guardians to do the job they signed up to do and that very very many of them were extremely good at doing.
As a footnote on my snarky comments about mission statements, the best advice I ever read about them is to imagine that they say the opposite. If that becomes ridiculous then the mission statement is meaningless. (i.e This Organisation wants to please its customers – the reverse is not something that would be true of any business, thus the mission statement is redundant nonsense. If nobody could possibly disagree with it, it isn’t meaningful. For example “We’re against nuclear war” is meaningless, “We’re against nuclear power” is not – there’s a degree of choice and standpoint with the latter – you could agree or disagree, whereas really nobody is in favour of nuclear war)