Rule 16.4 Guardians have a duty to take the initiative

A discussion of the Re G  Court of Appeal decision and what it means for Rule 16.4 Guardians and those representing them.

The case can be found here

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1434.html

Bit of explanatory background – in private law proceedings (i.e where a mother and father are in disagreement about the arrangements for their child and ask the Court to resolve things) sometimes the Court appoint a Guardian (effectively a social work qualified professional who is independent and doesn’t work for Social Services)  to represent the interests of the child. This is called a Rule 16.4 Guardian, or often just a 16.4 Guardian.  (To confuse things still further, a lot of people still call them 9.5 Guardians, as that was what they used to be called and people aren’t good at change)

It generally happens in really tricky cases where the Court is feeling that some independent presence would be helpful to defuse the situation.

Now, Rule 16.4 Guardians are employed by CAFCASS. Over recent years, CAFCASS have been more and more stretched by demand and have responded to this by directing their individual Guardians to do less and less on individual cases, so they can spread the larger number of cases across the same number of Guardians (by each taking on more cases, but doing less work on each)

At the same time, the solicitors representing Rule 16.4 Guardians are under increasing financial pressures to do less on the case too, because they get fixed fees, and the more time they spent on the case, the less profitable it becomes (often getting close to break-even or worse)

So, that’s the context.

The facts of this case are problematic – it is a case that has been plagued by litigation and appeals, and has already been up to the  Appeal Court twice and the House of Lords once. It relates to a father who provided gametes for a lesbian couple to have children, and there was then a falling out about whether he was supposed to play a part in the children’s lives (as he wished) or whether his work and involvement was over at the point the gametes were handed over (as the two mothers wished)

It is not terribly surprising given the massive conflict in this case that a Rule 16.4 Guardian was appointed.

What probably was surprising, both to the Rule 16.4 Guardian and those representing her was that they took a bit of a  kicking from the Court of Appeal. 

And the Court of Appeal set down, probably for the first time, what the expectations of a Rule 16.4 Guardian is, and it turns out that the Court expect them to ensure that the case is brought back before the Court if problems start to arise.  Indeed, the phrase “a clear duty to take the initiative” is used.

This case well illustrates the difficulties that courts presently face, and will more frequently face in the future, when the parties are unrepresented, particularly in a case as complex as the present. What is the duty of the rule 16.4 (formerly rule 9.5) guardian in such circumstances? There is no doubt that the burden on the judge to avoid legal misdirection and to ensure a fair outcome is magnified in such circumstances. At a minimum the children’s guardian, as the only party with the benefit of legal advice and representation must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.

41. The order of October 2010 created a common endeavour, the parties to which were the parents, the guardian, Dr Asen and the court. The duration of the joint endeavour was 12 months. If all went according to plan the parties would reassemble a year later to decide the future. If the joint endeavour did not run its intended course it was extremely important for the parties to decide swiftly the immediate future in the light of the unexpected development. The longer the delay the more difficult it would be to repair the breakdown. Absent agreement the court had to be re-engaged. CG had no incentive to return to court. CW who had every incentive failed to do so. In my judgment in the particular circumstances of this case, the guardian had a clear duty to take the initiative. He knew that CW had no advice or representation. He knew that she was appealing to him to act. Perhaps he did not know, but ought to have known from the history, that the maintenance of a relationship between the children and CW’s family had been declared both by the appellate courts and by Dr Asen to be of first importance. He also knew that Dr Asen was not a party, but an expert, whose continuing expertise was both crucial and available.

42. It is not fanciful to speculate that had the guardian applied to the court for urgent directions in December 2010 there would have been options that were no longer there 16 months later. Had CW advanced her application as modified on the 19^th April 2011, to the judge in December 2010 surely it would have succeeded. But was the delay such as to render it futile? The importance of restoring rather than abandoning relationships was obvious. The advice of Dr Asen was crucially required. Had CW been represented at the directions hearing in January 2012, surely the involvement of Dr Asen would have been canvassed. I do not understand why the guardian did not apply for a direction that would ensure that his advice would be available to the court at what was to be a final hearing.

43. I emphasise that there can be no criticism of the court. As soon as the judge was made aware of the situation he acted decisively to bring about an early hearing.

One can see why the Courts want to put down such a marker, particularly as we move into a future where more and more of these intractable private law cases will have only one legally represented party (the rule 16.4 Guardian) who will understand the process and how to get hearings listed.

But unless this is accompanied by some change in the way CAFCASS ask 16.4 Guardians to run the cases, and the LSC funding the representation of 16.4 Guardians in such a way that it is open to the solicitor for the child to be proactively case managing the case rather than simply representing the child, I don’t see it working.

In fact, I think a telephone call asking a solicitor whether they will represent a 16.4 Guardian might now cause a mild shiver down the spine of whether this is a case that is economically worth taking at all. 

We already know, for example, that solicitors representing 16.4 Guardians come under huge pressure from the Courts to be the sole funder of expert assessments, when the LSC (who pay for them) won’t allow that, and leaving them arguing with a Judge or being stuck with huge expert bills to pay from the solicitors own pocket. 

And if you’re now going to have to run around after unrepresented and warring parties to make sure the case is on track and if not whip it back into Court or face blame, it becomes pretty unattractive to represent even the most charming and personable of Guardians.