In this family case, an argument arose as to whether the father had committed a sexual act with a child, AB, who was not in the family and was not part of the proceedings. Consideration was given as to whether AB should give evidence in the family Court – the father disputed the allegations.
The Court gave directions to undertake a Re W exercise – the Court asks for evidence to be gathered about the merits and risks of the young person giving evidence. Where the young person is a child the subject of proceedings, it is the Guardian who speaks with the child and prepares a report about the ability of the child to give evidence and their views and the impact upon them. The Court then hears argument and decides whether the child should give evidence and if so whether any special arrangements are to be put in place.
Here, the Court made a direction for CAFCASS to do the work, and CAFCASS objected, so the Court then directed the social worker to do it. (The Local Authority raised that this was an issue of public importance – Guardians are well placed to obtain the wishes of children and do the Re W assessment and are more neutral than the LA whose job it is to prove the allegations, and the case was listed for consideration before Keehan J in the High Court.
A County Council v Children and Family Court Advisory and Support Service (Cafcass)  EWHC 2369 (Fam) (20 September 2019)
The Submissions of the Local Authority
- The local authority submitted that the court does have the power to make the direction given in this case in respect of a non-subject, non-party child and that Cafcass would not be acting outwith its statutory functions. The issue is a matter, it is said, of the statutory construction of s.12 of the 2000 Act and of the relevant rules in the FPR.
- In support of this submission the local authority rely on four aspects of the statutory and FPR provisions, namely:
- i) s.12(1)(b) provides that it is a function of Cafcass to “give advice to any court about any application made to it in [family] proceedings”;
ii) r.16.20(2) provides that “the children’s guardian must also provide the court with such other assistance as it may require”;
iii) paragraph 6.1(b) of PD16A provides “obtain such professional assistance as is available which the children’s guardian thinks appropriate or which the court directs must be obtained”; and
iv) paragraph 6.6(f) of PD16A provides the children’s guardian must advise the court on “any other matter on which the court seeks advice”.
and that in terms, the Court has the power to direct CAFCASS to do anything that would assist the Court or on which the Court wants advice.
The Submissions of Cafcass
- It was submitted that the opening words of s.12(1), “in respect of family proceedings in which the welfare of children…is or may be in question” confirm the parameters of the role of Cafcass is limited to the subject child or children. Further, it was submitted that the subsections of s.12 of the 2000 Act should not be read disjunctively. The reference in s.12(1)(c), “make provision for the children to be represented in such proceedings”, emphasises the point that the role of Cafcass is limited to the subject child of the proceedings.
- The point is forcefully made that it is the function of local authorities’ children services departments, and not Cafcass, to be responsible for the safeguarding of children generally. The duty of Cafcass to safeguard children is owed to those who are the subject of family proceedings.
- The general nature of the powers and duties of Cafcass was noted by the Court of Appeal in R and Others (Minors), R (ota) v The Child and Family Court Advisory and Support Service EWCA Civ 853. McFarlane LJ, as he then was, observed,
- “On its wording and in its immediate statutory context, the natural reading of s.12 is that it is concerned with establishing a general framework of operation for CAFCASS, not with creating duties owed to individuals. The purpose of the section is to lay down the principal functions of the body established by s.11. By s.78, those functions include both powers and duties. By paragraph 9 of schedule 2, they are to be performed in accordance with any directions given by the Lord Chancellor (for Lord Chancellor now read Secretary of State – see note at paragraph 28 above). All of this is very general in nature. So too is the wording of the functions themselves. That is true not only of the functions in subsection (1), to “safeguard and promote the welfare of children”, “give advice to any court …”, “make provision for the children to be represented …” and “provide information, advice and other support …”, but also of the duty in subsection (2) to “make provision for the performance of any functions conferred on officers of the Service …”. There is nothing in any of this to suggest a legislative intention that all or any of the duties created by s.12 are owed to the individuals for whose benefit the functions are to be performed. On the face of it, these are general public law powers and duties. Nor was our attention drawn to anything within the other parts of the CJCSA 2000 that might suggest a different view.”
- The Court of Appeal considered the approach of the court in undertaking a Re W assessment in Re E (A Child) EWCA Civ 473. At paragraph 61 McFarlane LJ, as he then was said,
- “It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.”
- As in the case of Re B, the court in Re E was not considering the position in respect of a non subject child nor the role of Cafcass, if any, in relation to such a child.
CAFCASS were arguing, in effect, that the powers of the Court to make directions for CAFCASS to do things were limited to the children who were the subjects of the proceedings.
I think you can tell from the first paragraph of the discussion that CAFCASS are going to win this, and indeed they do. Cue every Local Authority lawyer falling off their chair in amazement.
- The interpretation of s.12 of the 2000 Act and the relevant rules contended for by the local authority, see paragraph 23 above, would effectively place no limit on the work or the role a court could direct Cafcass or an officer of the Service to undertake. Counsel for the local authority conceded this point but submitted that ‘common sense’ must be applied to limit the scope of what a court may require of Cafcass. I do not find this, to put it mildly, to be an attractive nor a persuasive submission: rather it undermines the local authority’s contention. I cannot accept that Parliament intended to create a statutory national body to advise and assist the court in family proceedings, and to represent the children who are the subject of those proceedings, without any restriction or limit on its function and roles. Still less would Parliament have intended that the restrictions or limitations on the role of the service would be determined by applying common sense.
- The advocates were agreed, that according to the best of their respective researches, there is no reported authority on the interpretation of s.12 of the 2000 Act in respect of the scope of the function of Cafcass.
- In respect of whether the subsections of s.12 should or should not be read disjunctively, I note that:
- i) the words ‘or’ do not appear after subsections (a), (b) or (c); and
ii) neither does the word ‘and’ appear after subsection (c).
It is in my judgment, however, significant that s.12(1) reads “it is a function of the Service to” followed by subsections (a) to (d). If the subsections had been intended by Parliament to be read disjunctively, I would have expected the word ‘functions’ to appear in s.12(1). The use of the word ‘function’ in the singular leads me to conclude that subsections of s.12(1) are not to be read disjunctively but instead are to be read conjunctively. Since one part of that function is to ‘make provisions for the children to be represented in the proceedings’, I am persuaded that the function and role of Cafcass pursuant to s.12 of the 2000 Act is limited to the subject child or children of the proceedings.
- Furthermore, I agree with and accept the submission made on behalf of Cafcass that the opening words of s.12(1), “in respect of family proceedings in which the welfare of children…is or may be in question” should be interpreted to mean that the role of Cafcass is limited to the subject child or children of those proceedings.
- I am reinforced in coming to this conclusion by taking account of the following matters:
- i) the appointment of the children’s guardian in public law proceedings under Part IV of the 1989 Act (‘specified proceedings’ as defined by s.41(6)) and the assistance it may be required to give to a court are subject to rules of court (s.41(10) 1989 Act);
ii) the appointment of a children’s guardian in public law proceedings is limited to a child who is the subject of the proceedings and is a party to the same (r.16.3 FPR);
iii) similar provision is made in respect of the appointment in private law proceedings (r.16.4 FPR);
iv) the FPR make separate provision for a child who is not the subject of the proceedings but is a party to the proceedings, namely the appointment of a litigation friend (r.16.5 FPR); and
v) the powers and duties of a children’s guardian whether in public law or private law cases set out in rr.16.20 & 16.27 and paragraphs 6 & 7 of PD16A must be read in the context of and in the light of the requirements of rr.16.3 and 16.4 FPR, namely the appointment is made in respect of the subject child.
- I am in no doubt that a children’s guardian, appointed to represent a child in public or private law proceedings, may be required to advise the court on the subject child’s relationship with a non-subject child (eg a step-sibling) and the impact on the same depending upon the orders made by the court for the future placement of the subject child: see FPR r.16.20(2) & PD16A paras 6.6(f) & 7.7. Similarly, a children’s guardian may be required to enquire into and advise the court about a wide range of matters and about a diverse group of people (eg relatives, friends and connected persons etc). This could include advising the court on the benefits/disadvantages of a non-subject child being called to give evidence in the proceedings. What is key, however, is that the objective and focus of these enquiries and of the advice is, and must be, establishing the welfare best interests of the subject child.
- It is quite a different matter to seek to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to work with and advise upon a non-subject, non-party child. I have not been referred to any statute nor to any relevant rule of court which makes provision for such an appointment in these circumstances. I am satisfied such an appointment is outwith the statutory function and role of Cafcass.
- I, therefore, conclude that the court has no power to require Cafcass to appoint an officer of Cafcass, whether a children’s guardian or otherwise, to undertake any work with or play any role with AB.
- The preparatory work directed by the judge ought properly to have been undertaken by a social worker from the local authority and/or a social worker from A City Council or, as was ultimately directed, by an independent social worker. The young person, if called to give evidence, would have been the local authority’s witness on whose testimony it relied in seeking to prove relevant facts which, if found to be proved, would have satisfied the threshold criteria of s.31(2) of the 1989 Act.
- I have not taken account of the potential adverse consequences for Cafcass, in terms of workload, if I had concluded the court had the power to make directions in respect of a non-subject child. Given, however, the increase of the workloads for all concerned in the child protection and family justice systems, now is not the time to consider widening the scope of the functions of Cafcass with its current resources