R (R, E, J and K, minors by their litigation friend the Official Solicitor) v The Child and Family Court Advisory and Support Service

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Munby
Judgment Date12 Jul 2011
Neutral Citation[2011] EWHC 1774 (Admin)
Docket NumberCase No: CO/7242/2010

[2011] EWHC 1774 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Munby

Mrs Justice Thirlwall

Case No: CO/7242/2010

R (R, E, J and K, minors by their litigation friend the Official Solicitor)
The Child and Family Court Advisory and Support Service

Mr Charles Geekie QC and Ms Jenni Richards (instructed by Battens) for the Claimants

Mr Roger McCarthy QC (instructed by Director of Legal Services, CAFCASS) for the Defendant

Hearing date: 10 March 2011

Lord Justice Munby

This is the judgment of the court to which we have each made a substantial contribution.


These are test actions, brought by way of judicial review, relating to the duty of the Children and Family Court Advisory and Support Service (CAFCASS) to provide children's guardians for children involved in care proceedings under Part IV of the Children Act 1989.

An overview


The Official Solicitor brings these claims on behalf of four children as their litigation friend. All four children have been the subject of care proceedings. In each case there was a very long delay before CAFCASS allocated the child a guardian. The Official Solicitor, with the permission of Holman J, seeks a declaration that CAFCASS acted unlawfully and in breach of statutory duty by failing to allocate a children's guardian "earlier than the respective date on which CAFCASS did so allocate a named guardian." This was refined during the course of argument to "failing to allocate a guardian until such time as s/he was not able effectively to discharge his duties and responsibilities as guardian." In short it was submitted that the allocations were so late that they amounted to no allocation at all.


Towards the end of his oral submissions on behalf of CAFCASS Mr Roger McCarthy QC articulated for the first time explicitly the primary submission which, it seemed to us, underpinned his written submissions, namely that CAFCASS owes no public law duty to any child to allocate a guardian. We agreed that Mr Charles Geekie QC on behalf of the Official Solicitor should have time to put further submissions in writing, to which Mr McCarthy then replied, also in writing. We turn to the detail of the submissions on both sides of the argument later in this judgment.

The background


CAFCASS or, as it is referred to in the legislation, "the Service" was set up in 2001 in accordance with Chapter II of Part I of the Criminal Justice and Court Service Act 2000, which provided a framework for the provision of a single advisory service to the courts dealing with the welfare of children.


CAFCASS now employs 1,130 family court advisers. There are also 300 self-employed practitioners upon whom CAFCASS is able to call. It is uncontroversial, we think, to observe that from its earliest days CAFCASS has struggled with the volume of cases in respect of which its services are required. The early significant difficulties were aggravated from 2008 onwards by a marked increase in the number of care proceedings being issued. We were told that between 2002 and 2010 the number of children and families with whom CAFCASS was involved almost doubled, from 75,370 children and their families to 142,544. Backlogs became commonplace, if not the norm. Concern was such that in December 2009 the President of the Family Division issued interim guidance which reflected an agreement with the Ministry of Justice, the Department for Children, Schools and Families, Her Majesty's Court Service, and CAFCASS "to create a framework for local arrangements as the best method of achieving necessary improvements to assist CAFCASS to deliver their services to children, family and the courts, and thus secure timely outcomes to promote the welfare of children who are the subject of family proceedings." Designated Family Judges across the country issued local guidance. In many areas 'duty' schemes were set up; this meant that an experienced practitioner would consider the papers in cases where a child was the subject of proceedings but no guardian had been appointed. He or she might have discussions with the solicitor and might attend court hearings, depending on the local arrangements. This did not remove the need for a guardian, nor was it intended to.

The facts of the four cases


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


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.


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.


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.


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.


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


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.


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.


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.


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


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.


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.


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.


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


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.


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.


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...

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