Cafcass has “diluted” the independent role of children’s guardians by downplaying their powers and obligations, a professional body has alleged.
Nagalro, which represents children’s guardians, family court advisers and independent social workers, issued a statement this week saying that recent court judgments critical of guardians suggested “children’s interests are being compromised” and that Cafcass should review its policies.
It said text published on Cafcass’s website setting out children’s guardians’ duties and responsibilities “does not accurately reflect [their] legal powers and duties and… may impede guardians in carrying out a thorough investigation” on children’s behalf.
Cafcass has said Nagalro’s statement was a “misrepresentation” of ongoing discussions between the two organisations.
‘Woeful’ court appearance
In October 2018, Mr Justice Keehan heavily criticised a Cafcass children’s guardian who recommended two half-siblings be separated, calling her written report “inadequate” and her oral evidence “woeful”. As a result, he attached no weight to her evidence in making his judgment.
Though the guardian had 25 years’ social work experience, she had just 14 months’ experience as a guardian and had never seen a case through to final hearing.”Why local Cafcass managers thought it appropriate to appoint so inexperienced a guardian to such a complex case, I do not know,” the judge added.
In a judgment published earlier this year, meanwhile, Mrs Justice Theis terminated the appointment of a children’s guardian who, she concluded, had not adequately carried out her obligations set out by the Children Act 1989 and in relevant practice directions.
“The rules provide the wide discretion for the guardian to make such investigations as are necessary… and, in particular, contact or seek to interview such persons as the guardian thinks appropriate, or – and I emphasise the or – as the court directs,” Justice Theis said.
The government’s pages explaining the children’s guardian role summarise their powers around access to case records and meetings and to advise courts as to children’s best interests, in wording that summarises the practice direction.
Cafcass’s own website, by contrast, omits any explicit reference to those powers.
Speaking to Community Care, Sukhchandan Kaur, the chair of Nagalro, said she was “concerned that publicly available statements dilute the role of the children’s guardian and minimise their legal obligations”.
The small print
The Children Act 1989 (section 41) lays a duty on children’s guardians to safeguard the interests of the child in accordance with rules set out a practice direction, ’16A – Representation of Children’.
The practice direction sets out details covering a series of duties, including around carrying out all necessary investigations, appointing a solicitor, advising the court and submitting a report as to the child’s best interests.
The government’s guidance summarises the practice direction in simpler terms, explaining that guardians can access records and case files, attend meetings about the child, and tell courts what is best for them, including their wishes and feelings.
Crucially, in Nagalro’s view, Cafcass’s website makes little mention of the discretionary powers holders of the role are expected to exercise. It says only that “they will be analysing the local authority assessment and care plan to make sure it is right for your child” and that they may interview relevant people.
Kaur added that some of Cafcass’s wording – that it is “very likely” guardians will see children – downplayed their duties to ascertain children’s wishes and feelings. The practice direction says that the guardian must advise the court as to the child’s wishes in any relevant matter.
“The fact is that the children’s guardian is representing that child, is a party to those proceedings – seeing the child, getting to know them, is essential,” Kaur said.
Nagalro’s statement said the organisation had written to Cafcass interim chief executive Julie Brown setting out its concern and requesting that it amend its text in line with legislation.
“Nagalro urges Cafcass to review their policies in the light of the evidence of service failings revealed by recent court judgments and to provide accurate information to the public and practitioners,” it said.
Kaur confirmed that while Cafcass had initially refused to amend its guidance, discussions around the concern were now underway and that she hoped these would be “constructive” and “fruitful”.
A spokesperson for Cafcass said the organisation was “disappointed” by Nagalro’s press release, describing it as “a misrepresentation” of ongoing discussions between the two parties.
“Contrary to what Nagalro has stated, Cafcass is actively considering our current content on the role of the guardian,” the spokesperson said. “Cafcass recognises that the guardian is the independent voice of the child in court. As with all our content, information on our website must be clear and accessible, particularly for those children and families facing care proceedings who are at a critical point in their lives.”
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