The Children and Family Court Advisory and
Support Service acted “unlawfully” in withdrawing the option of
self-employment from children’s guardians, the High Court ruled
last week. Many guardians currently have self-employed status.
Delivering judgment in the judicial review
application brought by the guardians’ representative body, the
National Association of Guardians Ad Litem and Reporting Officers,
Mr Justice Scott Baker quashed Cafcass’s decision of 27 June to
offer the guardians only a contract of full salaried employment.
Cafcass’s offer of employment will stand, but it must re-open
consultation and negotiation on self-employment.
The decision followed months of negotiations
with the guardians – also including discussions with the Lord
Chancellor’s Department’s project team before Cafcass’ inception in
April – which led to a “legitimate expectation” of both employed
and self-employed options, said the judge.
Children’s guardians – formerly guardians ad
litem – are the independent voice of children in care and adoption
cases, and are appointed by the family courts. Self-employed
guardians have been in dispute with Cafcass over proposals to pay
them on a graduated, or fixed, fee basis, which Nagalro claims
threatens guardians’ independence and professional ability to
safeguard the best interests of vulnerable children.
Describing Cafcass’s decision in June as a
“bombshell”, Scott Baker said “Cafcass has acted unlawfully in
relation to its commitment” to offer both employed and
self-employed options. Cafcass’s decision was a “complete volte
face”, added the judge, and rejected Cafcass’s submissions that it
had no choice but to withdraw the self-employed contract because
Nagalro “did not want what was on offer”.
Nagalro chairperson Susan Bindman said she was
“gratified” by the decision. She added: “As always Nagalro wishes
to work with Cafcass in achieving a flexible resolution for all
those who wish to provide services to children within the family
courts. We hope that we can put an end to litigation and a
beginning to co-operation.”
The dispute has led to waiting lists for
children’s cases in parts of England and Wales. Of the 729
self-employed guardians, only 183 have joined Cafcass, with many
others refusing to take on any new cases. Meanwhile, a parallel
recruitment drive by Cafcass over the summer resulted in 157 new
applicants ready to be appointed, pending the outcome of the
Cafcass and Nagalro have agreed cases will be
allocated to existing employed and self-employed guardians, but
where there is no available guardian, then Cafcass will be free to
appoint a new guardian.