Challenge to Cafcass over guardians fails

In The Queen (on the application of R and others) v Cafcass (17
January 2002), the high court finally considered the duty on
Cafcass to provide children’s guardians in proceedings such
as those relating to interim care orders and emergency protection
orders.

The background to the case concerned the problems that Cafcass
had faced taking over the functions of providing children’s
guardians from local authorities upon its establishment by statute
in April 2001.

Delays started to appear in providing guardians for appointment
in areas of the country where this was previously extremely rare.
Magistrates expressed their concerns that guardians were not
available when the court wished to appoint a guardian to safeguard
a child’s interests.

In the case of R, hearings took place without a guardian when
children were separated from their mother. The delay was over two
weeks for the appointment. In the related case of P the delay was
much longer, and included a hearing in which the child was removed
from its mother.

Cafcass argued on a practical basis that it was doing its best
with the resources it had (which were limited by the Lord
Chancellor’s Department), and was doing all it could to
recruit new guardians. In the meantime it had appointed solicitors
in cases where there was delay to protect the children’s
interests.

In legal terms Cafcass argued that there was nothing in statute
which required them to provide a guardian as soon as court
indicated that it wished to appoint one. Its functions, it said,
were general in nature and not enforceable by individuals other
than on the grounds that its approach was totally unreasonable.

The children affected argued that a duty to provide a guardian
arose at the moment that the court decided to appoint one, and any
other interpretation would lead to Cafcass’ ability to
frustrate the court’s intention.

The high court preferred Cafcass’ approach and accepted
that there was little that Cafcass could be forced to do if it was
doing its best within the resources it had been given by central
government. The high court accepted that it was desirable that a
guardian should be appointed as soon as possible, but did not
accept that Parliament had decided that a guardian should be
appointed immediately. The court also doubted that in many cases at
a very early stage that the guardian was able to make a crucial
intervention, and that a robust approach by the courts in relation
to the evidence before it was probably more important.

As a result of this approach the court rejected the case of the
claimants that they were entitled to damages for breaches of
article 6 (right to a fair hearing) and article 8 (right to respect
for family life) under the European Convention of Human Rights.

Comment: the case thoroughly tested the legal duties of Cafcass
and others in care proceedings and the judgment of the Court is
worth reading for this purpose alone. The judge commented that
proper funding of Cafcass was important, but otherwise his approach
may well disappoint those who feel that the role of the guardian at
an early stage of proceedings is crucial to safeguard the position
of children. The case is not being appealed to the court of
appeal.

Stephen Cragg

Doughty Street Chambers

(the author was counsel for the claimants in this case).