Children and young persons - Care order - Provision of children's guardians

R (on the application of R and others) v Child and Family Court Advisory and Support Service: Queen's Bench Division, Administrative Court (London) (Lord Justice Munby, Justice Thirlwall): 12 July 2011

The claimant's cases had been chosen from amongst a very large number of cases from a number of different areas of the country where there had been significant delays in the appointment of a guardian as a result of the defendant Child and Family Court Advisory and Support Service's (Cafcass) repeated failure to allocate guardians. The first claimant, R, was born in October 2000. In June 2009, his mother assaulted him in the family home. She placed him in voluntary care.

The local authority began care proceedings. As was the normal practice the court informed Cafcass of the proceedings. On 1 July, the court ordered that Cafcass should allocate a guardian as soon as possible. The order was received by Cafcass on 27 July. A guardian was allocated on 15 September and appointed by the court on 21 September. Thus three months has elapsed between R being taken into care and the appointment of a guardian.

On 16 April, the guardian left Cafcass. A second guardian was appointed on 12 May 2010. The second claimant, E, was born in October 2009. In November, he was taken to hospital with bruises. A paediatrician considered they were consistent with the parents' explanation. At a follow up appointment a radiologist raised the issue of non accidental injury.

Social services became involved. E's parents agreed that he should go to his maternal grandfather who would supervise contact. Care proceedings began in December. Mr D was appointed as E's solicitor. A duty officer carried out a risk assessment, he read the papers and spoke to the local children's services team manager. He was satisfied with the measures in place. The letter before claim was sent on 8 March 2010. No guardian was ever appointed. The case was discontinued in April 2010.

The third claimant, J, was born in November 2008. He was accommodated by the local authority in December 2008. In October 2009, the local authority sent papers about the case to Cafcass. Proceedings were issued the following day. Notwithstanding persistent chasing by J's solicitor Cafcass did not allocate a guardian. In March 2010, the claimant's letter before claim was sent to Cafcass. A guardian was allocated at some stage and was appointed on 22 March 2010, four months after the first court hearing.

The fourth claimant, K, was born in July 2009. In August, the local authority began care proceedings because of concerns about his mother's drug use. A solicitor for K was appointed by the court. He repeatedly and persistently contacted Cafcass, requiring a guardian. A senior practitioner at Cafcass reviewed the papers in September. In March 2010, a guardian was appointed, seven months after proceedings began. The claimants applied for judicial review.

The claimants contended that Cafcass had failed in its duty to each of them because in each case the guardian had been appointed so late that s/he could not have effectively discharged his or her duties and responsibilities.

Having carefully analysed the statutory scheme under the Children Act 1989 (the 1989 Act), read in conjunction with the Public Law Outline (PLO), they submitted that: (i) the timetable for and conduct of care proceedings were tightly governed by the 'no delay' principle under s 1(2) of the 1989 Act and by the detailed timetable laid down in the PLO; (ii) there was no sense that the conduct of care proceedings was geared simply towards an all-important final contest between the parties at or near the end of that period, on the contrary, the rules were designed to avoid confrontation where possible, eliminate all unnecessary issues and avoid sprawling final hearings;

(iii) care proceedings were, or should have been, 'front-loaded', quasi-inquisitorial, and subject to tight judicial controls at all times; (iv) a denial of representation in week one was no less significant than a denial of representation in the final week, indeed given the key issue of separation or no separation from parents that arose at the very outset in many cases it was arguably more important for a guardian to be in place at that stage; and (v) a wide-ranging ability for Cafcass to set its own timetable for appointment of the guardian would always be incompatible with such a system.

Cafcass contended that in each case a guardian had been allocated as soon as was reasonably practicable having regard to its resources and commitments. Consideration was given to the Criminal Justice and Court Services Act 2000 (the 2000 Act). The application would be dismissed.

Quite clearly, s 12 of the 2000 Act imposed on Cafcass various obligations and duties as well as various functions and powers. Included amongst those obligations and duties were those which arose under ss 12(1)(c) and 12(2) of the 2000 Act: the duty to 'make provision for the children to be represented in proceedings' and to 'make provision for the performance of [the] functions conferred on officers of the Service by virtue of' the 1989 Act.

Moreover, the obligations under ss 12(1)(c) and 12(2), could 'bite' before any officer had been appointed to be the guardian in any particular case. Sections 12(1)(c) and 12(2) had to be read and construed together. In the absence of any directions from the Lord Chancellor, it was for Cafcass to design, man and organise that scheme. But given the language of ss 12(1)(c) and 12(2) of the 2000 Act the scheme had to make appropriate provision for an appropriate number of officers to enable it to carry out its function of providing guardians in care proceedings.

However, the relevant duties under ss 12(1)(C) and 12(2) were general duties and did not confer enforceable rights on individual children. There was a general duty imposed on Cafcass to ensure that children were represented, but that was not to say that there was a specific duty to ensure that a particular child was represented.

Moreover, it was simply not possible to spell out of ss 12(1)(c) and 12(2) any obligation to do anything in any particular case within any particular time-scale. The most that could be read into ss 12(1)(c) and 12(2) of the 2000 Act was an obligation to appoint 'as soon as reasonably practicable' having legitimate regard to Cafcass' resources and its obligations to children in other cases, not reasonable practicability assessed exclusively through the eyes of the court in a particular care case.

That obligation was a general one, not an individual specific duty owed to the individual child in a particular case. Applying normal public law principles Cafcass should, subject to legitimate prioritisation of cases and resource considerations, make officers of the service available for appointment as children's guardians as soon as possible after it had been asked to do so by the court (see [89]-[94] of the judgment). In the circumstances, the driving force in all four cases had been Cafcass' lack of resources. Its decisions had been entirely rational (see [96] of the judgment).

H (a child) (care proceedings: children's guardian), Re; Re B (children) (care proceedings: children's guardian) [2001] All ER (D) 171 (Oct) considered; R v Children and Family Court Advisory and Support Service [2003] All ER (D) 102 (Jan) applied.

Per curiam: This case is about resources, or rather the inadequacy or the resources made available to Cafcass to enable it to perform its vitally important functions; functions which, it must never be forgotten, are directed to protecting and enhancing the welfare of some of the most vulnerable and damaged in our society.

Charles J concluded in his judgment in R v Children and Family Court Advisory Service and Support Service by referring to 'strong arguments in favour of the view that Cafcass should receive funding that is sufficient to enable it to maker officers of the service available for appointment as children's guardians in specified proceedings on, or within a very short time after, its receipt of a request to do so from a court'.

It would seem, unhappily, that this has been ignored. It is surely a serious question for government and parliament whether the state of affairs revealed, and not for the first time, by these cases can continue to be tolerated (see [99]-[100] of the judgment).

Charles Geekie QC and Jenni Richards (instructed by Battens) for the claimants. Roger McArthy QC (instructed by the Director of Legal Services, Cafcass) for the defendant.