R R, E, J and K (Minors, by Their Litigation Friend the Official Solicitors) v The Child and Family Court Advisory and Support Service
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black |
| Judgment Date | 19 January 2012 |
| Neutral Citation | [2012] EWCA Civ 152 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/2066 |
| Date | 19 January 2012 |
[2012] EWCA Civ 152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 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
Lady Justice Black
Case No: C1/2011/2066
Mr Charles Geekie QC and Ms Jenni Richards QC (instructed by Battens Solicitors Limited) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
In July last year the Divisional Court dismissed claims for judicial review made by four children. Each one of the four was or had been the subject of separate care proceedings. Their judicial review claims arose from the delay in Cafcass providing them with a guardian to look after their interests in the care proceedings. They now seek permission to appeal against the Divisional Court's decision.
The oldest child was eight when care proceedings were begun and it was three months before a guardian was appointed for him. The remaining claimants were all small babies. One had sustained bruises which were thought to be non-accidental. The proceedings were begun just before Christmas 2009 and discontinued in mid April 2010 with no guardian having been appointed. Another of the babies was the subject of proceedings for some four months before a guardian was appointed. In the fourth case it was seven months after the start of the proceedings before a guardian was appointed, the only assistance in the meanwhile having been from a duty officer who did attend some hearings and participated in discussions.
Permission to apply for judicial review was granted on a limited basis, that is, to apply for a declaration that in respect of each case Cafcass acted unlawfully and in breach of its statutory duty in failing to allocate a named guardian for the child earlier than the date on which that was actually achieved. The central focus of the argument in the Divisional Court was section 12 of the Criminal Justice and Court Services Act 2000. That is the Act which established Cafcass. Section 11 provided that Cafcass was to "exercise the functions conferred on it by virtue of this Act and any other enactment". Section 12 is headed "Principal functions of the Service". Section 12(1) says that:
"In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to—
(a) safeguard and promote the welfare of the children,
(b) give advice to any court about any application made to it in such proceedings,
(c) make provision for the children to be represented in such proceedings
Section 12(2) says that:
"The Service must also make provision for the performance of any functions conferred on officers of the Service by virtue of this Act or any other enactment (whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1))."
There are a number of other provisions of statute and statutory instruments which are relevant and which can be found set out in the Divisional Court's judgment but I will confine myself and only set out the bare minimum in this permission judgment. Important amongst these other provisions is the stipulation in section 1(2) of the Children Act 1989 that any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. This reflects a widespread recognition also found exemplified in other provisions of the Children Act and Family Procedure Rules and so on of the need to act with expedition in cases concerning children. Also important is section 41 of the Children Act. This provides that in specified proceedings, which include care proceedings, the court shall appoint an officer of Cafcass for the child unless satisfied that it is not necessary to do so in order to safeguard his interests. The Cafcass Officer:
"shall—
(a) be appointed in accordance with rules of court; and
(b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules."
The Rules, now the Family Procedure Rules 2010, go over some of the same ground, so Rule 16.3(1) provides that:
"Unless it is satisfied that it is not necessary to do so to safeguard the interests of the child, the court must appoint a children's guardian for a child who is—
(a) the subject of; and
(b) a party to,
proceedings—
(i) which are specified proceedings"
And Rule 12.6 provides that:
"As soon as practicable after the issue of proceedings or the transfer of the proceedings to the court, the court will—
(a) in specified proceedings, appoint a children's guardian under rule 16.3(1) unless—
(i) such an appointment has already been made by the court which made the...
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