CAFCASS told to reconsider guardians contract decision

Mr Justice Scott Baker granted the application of the National
Association of Guardians Ad Litem and Reporting Officers (NAGALRO)
that the decision of the Children and Family Court Advisory and
Support Service (CAFCASS) on 27 June 2001 only to offer employed
contracts to children’s guardians should be quashed.

The thrust of the CAFCASS argument was that the project team set
up by the Lord Chancellor’s department to put CAFCASS in place was
not CAFCASS itself. It was the job of CAFCASS to manage the
preparation and set up the structures leading to implementation.
CAFCASS was responsible for its own decisions after the act, and
was entitled to decide that they would not offer self-employed
contracts.

But the judge held that there was a legitimate expectation
developing – underpinned by the need for fairness. He held that the
project team and the department were part of the picture. The
positions adopted by them, supporting the idea of self employed
contracts were not disavowed. CAFCASS committed itself to giving
reasonable notice of excluding the self-employed. It should not out
of the blue have decided there would be no self-employed contracts.
NAGALRO should have been given an opportunity to put its case.
Accordingly CAFCASS had acted unlawfully.

The court had a discretion to grant relief. CAFCASS argued that
it was not appropriate to grant relief because they had a statutory
right to determine the contract and the chaotic situation which
existed would be made worse by delay. The judge expressed the hope
that relations would improve. ‘They will have to be if CAFCASS is
to fulfil its duties’ he said.

He had expressed the hope that the time since 30 July when he
gave permission for the application to proceed would be used
constructively. It had not been and that had not been helped by the
terms of a letter of 7 August in which the chief executive of
CAFCASS had said she could not discuss the case because it was sub
judice.

The judge noted that the position was serious but said that did
not override unlawful behaviour. He ordered a timetable in which
there are to be further negotiations. Judicial review is a blunt
weapon. The judge can do no more than require CAFCASS to reconsider
its decision, but it must now take into account the proper
considerations.

Richard White

White and Sherwin Solicitors