High Court rap for Cafcass over bid to remove guardian

Family courts body Cafcass has been reprimanded in the High Court for trying to remove a guardian from a contested care case.

In the judgement, A County Council v K & Ors, Sir Nicholas Wall, president of the family division, found Cafcass management had undermined the independence of children’s guardians by asking a family proceedings court to replace a guardian.

It followed disagreement between a children’s guardian and social workers at East Sussex Council over the authority’s care plan for a child.

At a hearing in September, the council sought an interim care order (ICO), with the child placed in foster care, which was opposed by the child’s parents and the guardian. The court ruled in favour of the guardian, with the child remaining in the family home on an ICO.

The social workers were later overheard discussing the case by an agency worker who emailed a senior manager at Cafcass urging the body to intervene. In the email, the worker expressed concerns that the guardian’s recommendation was unsafe.

After discussions about the case between the local authority, Cafcass and the guardian, Cafcass management wrote to the court explaining their concerns about the guardian’s recommendation and stating that the guardian had agreed to be removed from the case.

The court appointed a new guardian but at no point was this made clear to the child’s parents.

In the judgement, which guardians body Nagalro has called a landmark ruling, Sir Nicholas Wall maintained that only courts had the power to appoint and remove guardians.

“It was not for Cafcass to replace the guardian,” Wall said in the judgement. “It was not for Cafcass to substitute its views for those of the guardian. The guardian may have been right – she may have been wrong. It does not seem to me that Cafcass followed a transparent procedure. What occurred should not have happened.” 

He was also critical of the agency worker for failing to follow whistleblowing procedures and of the council and Cafcass for discussing a live case without making their discussions clear to the family and the court.

Nagalro chair Ann Haigh said the judgement was much-needed and “fully supports our view that personal responsibility and the professional judgement of skilled and independent practitioners offers the best protection for children”.

She called on Cafcass to review its organisational policies to ensure all managers and practitioners fully understand their relationship with the court and the importance of the professional independence of guardians.

Anthony Douglas, chief executive of Cafcass, welcomed the judgement, which confirmed that individual guardians’ work should be open to managerial scrutiny. However, he acknowledged that Cafcass should have put the disagreement before the court.

“We do not muzzle practitioners,” Douglas said, “but there are times when the rationale for a report needs to be challenged. We did not do that properly in this case and we accept the judgement. If there is an irreconcilable difference between managerial and practitioner opinion in future, we will do as the president says, and put both views before a court.”

He added: “This was a one-off case. Our managers work with practitioners day in, day out on over 12,000 public law cases at any one time, supporting them with complex and difficult work, resolving professional disagreements and always trying to improve the work we produce.”

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