R (R and Others (Minors)) v Children and Family Court Advisory and Support Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,The Lord Chief Justice of England and Wales,Lord Justice Richards |
| Judgment Date | 29 June 2012 |
| Neutral Citation | [2012] EWCA Civ 853 |
| Date | 29 June 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/2066 |
[2012] EWCA civ 853
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Munby and Mrs Justice Thirlwall
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Chief Justice of England and Wales
Lord Justice Richards
and
Lord Justice Mcfarlane
Case No: C1/2011/2066
Mr Charles Geekie QC and Ms Jenni Richards QC (instructed by Battens Solicitors Limited) for the Appellant
Mr Roger McCarthy QC (instructed by the Director of Legal Services of the Child and Family Court Advisory and Support Service) for the Respondent
Hearing date : 15 th May 2012
This is an appeal against the decision of the Divisional Court [Munby LJ and Thirlwall J] on 12 th July 2011 dismissing a claim for judicial review brought on behalf of four children against the Child and Family Court Advisory and Support Service ("CAFCASS"). Judicial review had been sought on the basis that failure to appoint a children's guardian in a timely manner, or in one of the cases at all, in care proceedings under the Children Act 1989 constituted a breach by CAFCASS of statutory duty and/or a breach of the European Convention on Human Rights (ECHR) rights of the respective children.
The Divisional Court accepted that CAFCASS was under a statutory duty in general terms to provide a scheme for the representation of children in care proceedings in England, but concluded that that duty did not extend to a specific obligation to ensure that a particular child in an individual case is represented.
The facts of the four cases
The essential facts of each of the four cases are uncontroversial as between these parties and were summarised as follows in the judgment below:
"The facts of the four cases
7. These may be stated relatively shortly. The claimants' cases have been chosen from amongst a very large number of cases from a number of different areas of the country where there have been significant delays in the appointment of a guardian as a result of CAFCASS' repeated failure to allocate guardians. They are not the four worst examples. They are, we are told, and we accept, broadly representative of a range of types of case and a range of delays. We set out the important dates and events below.
The facts of the four cases: R
8. R was born in October 2000. In June 2009 his mother assaulted him in the family home. She placed him in voluntary care. On 28 June 2009 the local authority began care proceedings. As is normal practice the court informed CAFCASS of the proceedings.
9. On 29 June 2009 the court appointed Mr D as R's solicitor. On 1 July 2009 the court ordered that CAFCASS should allocate a guardian as soon as possible. The order was received by CAFCASS on 27 July 2009.
10. At an early stage a CAFCASS duty adviser studied the available information and assessed the overall risk to R as low. This was presumably on the basis that he was in foster care. In addition there was some discussion between the CAFCASS duty adviser and Mr D although CAFCASS have no record of that.
11. A guardian was allocated on 15 September 2009 and appointed by the court on 21 September 2009. Thus 3 months elapsed between R being taken into care and the appointment of a guardian.
12. On 16 April 2010 the guardian left CAFCASS. A second guardian was appointed on 12 May 2010. It is not apparent that there was any involvement in the case by any member of CAFCASS in any capacity during the month from 16 April to 12 May 2010.
The facts of the four cases: E
13. E was born in October 2009. On 26th November 2009, when about one month old, he was taken to hospital with bruises. A paediatrician considered they were consistent with the parents' explanation. At a follow up appointment on 18 December 2009 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.
14. Care proceedings began on 22 December 2009. Mr D was appointed E's solicitor the next day, 23 December 2009. On 24 December 2009 a duty officer carried out a risk assessment; he read the papers and spoke to the local authority Children's Services team manager. He was satisfied with the measures in place.
15. It is CAFCASS' contention that at a hearing on 2 March 2010 (five months after proceedings began) the CAFCASS officer who had previously been involved on a duty basis indicated to Mr D that he would be able to take on the case. Mr D recalls that the CAFCASS officer had indicated that he might be able to act as guardian if another case finished. Whatever the precise position as between Mr D and the CAFCASS officer the latter was of the view that all that was required at that stage was a 'watching brief' because of a dispute on the medical evidence. 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.
16. The letter before claim was sent on 8 March 2010. No guardian was ever appointed. The case was discontinued on 13 April 2010.
The facts of the four cases: J
17. J was born in November 2008. He was accommodated by the local authority on 22 December 2008 and remained there for some months. On 30 October 2009 the local authority sent papers about the case to CAFCASS. Proceedings were issued the following day. The first hearing took place on 5 November 2009. We assume that a solicitor for the child was appointed that day since the following day he sent an attendance note of the hearing to CAFCASS, drawing attention to the fact that the court considered the appointment of a guardian for J to be crucial.
18. Notwithstanding persistent chasing by J's solicitor CAFCASS did not allocate a guardian. In February 2010 (three months after the first court hearing) the case was allocated to a duty officer. This meant that a duty officer discussed the case with J's solicitor on one occasion but no guardian was appointed.
19. On 8 March 2010 the claimant's letter before claim was sent to CAFCASS. A guardian was allocated at some stage (we have not been provided with the date) and was appointed, we assume shortly afterwards, on 22 March 2010, that is four months after the first court hearing.
20. In November 2010 J's mother suffered a serious mental health breakdown. She was detained in hospital. There is now a difference in psychiatric opinion about her ability to be an adequate parent to J should she become ill again. The final hearing is expected shortly.
The facts of the four cases: K
21. K was born in July 2009. On 25 August 2009, when he was six weeks old, the local authority began care proceedings because of concerns about his mother's drug use.
22. A solicitor for K was appointed by the court. He repeatedly and persistently contacted CAFCASS, requesting a guardian. A senior practitioner at CAFCASS reviewed the papers on 10 September 2009. For some time a CAFCASS officer was involved on a duty basis only, but she did attend some hearings and participated in discussions.
23. On 22 March 2010 a guardian was appointed, seven months after proceedings began and two weeks after the letter before claim was served in these proceedings. By that stage it was known that there was to be a contested hearing in May 2010 to establish which parent would proceed to the next stage of the assessment process.
The facts of the four cases: the parties' submissions on the facts
24. It is the contention of CAFCASS that in each case a guardian was allocated as soon as was reasonably practicable, reasonably practicable, that is, having regard to CAFCASS' resources and commitments. That is not challenged. The claimants submit that CAFCASS failed in its duty to each of them because in each case the guardian was appointed so late that s/he could not effectively discharge his or her duties and responsibilities."
The children's guardian: background
The need for a court making decisions about whether or not a child requires the protection of a care order to have advice from a social worker who is independent of the applicant local authority was given prominence in the report into the death of Maria Colwell in l974 and was reemphasised in subsequent reports into the deaths of Jasmine Beckford (1985), Heidi Koseda (1986) and Kimberley Carlile (1987). Whilst statute law was slow to deliver a requirement for the appointment of an independent social worker to represent the interests of a child in statutory care proceedings under the Children and Young Persons Act 1969, many of the more complicated child care cases were in fact brought before the court outside the statutory scheme by using wardship proceedings and it was the norm in wardship cases for the child to be represented by a guardian ad litem, often the Official Solicitor, who could instruct an independent social worker to advise the court and would provide legal representation to advocate the recommendations of that advice before the court.
The Children Act l989 [CA 1989], which came into force on 14 th October 1991, expanded the statutory scheme so that it now encompasses all cases where local authorities seek to take a child into care on the basis that the child is suffering, or is likely to suffer significant harm. In consequence of CA 1989, s 100, wardship is no longer available for this purpose. The 1989 Act, drawing upon the...
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