R Ravinder Singh Kang v Children and Family Court Advisory and Support Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Waller |
| Judgment Date | 22 February 2010 |
| Neutral Citation | [2010] EWCA Civ 317 |
| Date | 22 February 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/0207 |
[2010] EWCA Civ 317
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Silber
Before: Lord Justice Waller and Lord Justice Wilson
Case No: C1/2009/0207
(LOWER COURT No. CO/8654/2008)
Mr Rambert De Mello (instructed by Messrs R J Hawksley and Co) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
Lord Justice Wilson:
Mr Kang makes a renewed application for permission to appeal against the refusal of Silber J, sitting in the High Court, Queen's Bench Division, Administrative Court, on 22 January 2009, to grant him permission to apply for judicial review. The defendant to his proposed claim is the Children and Family Court Advisory and Support Service (Cafcass).
The claimant has been a party to long-running and highly acrimonious family proceedings in relation to his two children. Those proceedings have been brought either by him against their mother, being his wife or former wife, or by her against him. In those proceedings an order was made that the children should be represented by a guardian ad litem; and in due course Mrs Sivills, a Cafcass, officer was appointed to fulfil that role. The present proceedings arise out of the claimant's dissatisfaction with the way in which she performed it.
As a family lawyer, I can confirm that the way in which an aggrieved parent usually expresses dissatisfaction with the content of a guardian's report, including of course the conduct of its author in relation to its preparation, is by cross-examination and submission in the family proceedings. In these present proceedings something of a veil has been drawn over the family proceedings. But we are told today that, as one would expect, counsel for the claimant in the family proceedings did, at the final “outcome” hearing of the proceedings which took place in July 2009, press the claimant's complaints by cross-examination of the guardian and final submission to the court; it remains unclear whether, and if so to what extent, the judge in those proceedings upheld his objections.
This claim arises out of the way in which, following receipt of a complaint by the claimant about the conduct of the guardian, Cafcass operated its complaints procedure. The argument put before Silber J, which is different from the argument presented to us today, is that, in relation to the claimant's complaint, a particular determination made by Cafcass in the course of operating its complaints procedure was irrational; and, as I will indicate at the end of this judgment, a very wide, fresh, dimension of argument is now put forward. At all events, the argument presented to the judge was, so he held, unarguable.
In order to prepare her report for the court in the family proceedings the guardian made three visits to the home of the claimant. She visited on 27 September 2007 and interviewed him in the presence of the claimant's mother and sister; and (omitting an intervening visit which is immaterial) she visited again on 6 October 2007 and conducted a further interview with him, at which the claimant's mother and sister were again present but so also, on this occasion, was the claimant's brother.
By letter to Cafcass dated 7 November 2007 the claimant made a complaint about the perceived bias of the guardian against him, both as a father and as a Sikh, as allegedly demonstrated by her during these visits. Whether, by 7 November, the guardian had served her report is unclear. The claimant's letter, which was detailed, complained of cultural ignorance and insensitivity on the part of the guardian and, in particular in relation to the first visit, attributed to the guardian unusual and arresting statements such as that “Indian fathers do not look after their children anyway”.
Thus the Cafcass complaints procedure began to be operated. It has various stages, as set out in a leaflet issued by Cafcass entitled “Your Views Count”. A complaint is registered under stage one; is considered by the line manager of the officer complained about under stage two; may proceed to an independent panel under stage three; and can even reach a stage four. Stage two of the process was conducted by the guardian's line manager, Mr McGinty, who was a service manager of the Cafcass High Court team. Nothing turns on his handling of stage two. Suffice it to say that on 8 January 2008 Mr McGinty met the claimant, his brother and his sister, in Guildford; the meeting lasted for almost four hours; and its purpose was to enable Mr McGinty fully to understand the claimant's complaints against the guardian.
By letter to the claimant dated 14 January 2008 Mr McGinty explained in detail, across eight pages, how he appraised the numerous complaints which the claimant had made about the guardian. He upheld one complaint, namely about an ill-advised reference on the part of the guardian, in the presence of the assembled company on 6 October, to the abnormal failure of one of the mother's breasts to have developed. It was Mr McGinty's view that, without the prior consent of the claimant, the guardian should not have raised that delicate matter in the presence of his sister or mother. Mr McGinty offered him an apology on behalf of Cafcass in that regard. But the numerous other complaints, the most significant of which he rightly took to be the alleged comments of the guardian on 27 September, he refused to find established. He also observed, correctly from a family law point of view, that at an interim hearing which had apparently taken place, the complaints about the guardian had curiously not been articulated on behalf of the claimant.
Then, in a prompt response by the claimant to Mr McGinty by letter dated 21 January 2008, there was a curious development. The claimant therein explained, for the very first time, that, during the visit of the guardian...
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