Hurrah for independent Guardians

A County Council v K & Ors (By the Child’s Guardian Ht) [2011] EWHC 1672 (Fam)

I have not had the chance to fully read this judgment, but this case appears to be an astonishing rebuke to CAFCASS’ bureaucratic, authoritarian managerial approach, and firmly reminds them of the need to allow Guardian’s to exercise their independent judgment without fetter.

Jordan’s Family Law summary here.

Judgment on BAILII here.

7 thoughts on “Hurrah for independent Guardians

  1. The judgment narrates aspects of the history of the case that appear astonishing, but the judgment itself is a measured analysis, with helpful conclusions, don’t you think?

    • Yes, I think so – I read it whilst hanging around at the FPC this morning. More entertaining than a newspaper, and as you say helpful and clear conclusions for future reference.

    • And, what was interesting I thought was the assertion by CAFCASS through counsel that Manager trumps Guardian (crass condensed version of their argument I know) – they went beyond what had happened in the individual case and argued the principle of general application. That’s the most revealing thing about the whole case – the prevailing attitude that this case is merely one example of??

  2. […] should not be overlooked that there remain some small signs that cooperative working has not yet reached all extremities of the family justice system. The […]

  3. […] Council v K & Ors (By the Child’s Guardian Ht) [2011] EWHC 1672 (Fam) (04 July 2011) (brief blog post here), which for him are evidence that problems persist. The Munro report is also quoted, and that can […]

  4. inflagrantedilecto

    Dear Lucy, I have decided that it makes more sense for this post to find a home on this thread….for obvious reasons…so if it’s ok with you i’ll use it for any updates I find about Cafcass’ current involvement in reported cases…..hence the additional info from a more recent case which has thrown up some interesting questions for the judge….and Cafcass.

    There are 2 recent cases reported on the Family Law Week website that clearly indicate Judges can go to incredible lengths to get at the truths of a case particularly in very complex cases involving detailed medical evidence….these are….LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam)

    And now

    A County Council v M and F [2011] EWHC 1804 (Fam) heard by Mr Justice Mostyn.

    What is interesting to me in both cases are the comments made by senior judges about the role and performance of the Children’s Guardian…the thrust of both being that they provided no help to the court as the judges expected them to do.

    Mr Justice Mostyn writes in A C.C. v M and F he says…..

    “To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.” “I was surprised to read that. Given that the outcome of this hearing could have a most far-reaching effect on her clients D and S2 I would have thought that I would be offered at least a steer as to what findings I should make. But no, I was firmly told that this is not the practice, and with my slender experience of this kind of work I am not in a position to argue. That said, approaching the matter with an open mind uncluttered by years of experience of this kind of work I would have thought that at the very least the role of the Guardian and those representing her should be akin to Counsel to a Statutory Inquiry, assisting the court in exploring complex scientific evidence and making suggestions to the court as to what findings should properly and tenably be made. The practice of sitting with an assessor has fallen into disuse (notwithstanding that the procedure for appointing an assessor has recently been reiterated in FPR 2010 r25.14), and thus the role of the representative of the Guardian in a case such as this cannot be overstated”.

    and in the highly publically reported case of….LB of Islington v Al Alas and Wray the judge says…..

    “The Children’s Guardian took no part in this hearing. Those were her instruction to her solicitor, Mr Sharma. He hinted at one of the early directions hearings that there had been difficulty in securing funding from the LSC for instructing counsel. In the light of the fact that he proposed to take no part in the forensic process Mr Sharma did not attend after the third day of the hearing, other than to hear specific witnesses on the instruction of the Children’s Guardian. The role of the Children’s Guardian can include drawing to the court’s attention to all relevant matters to assist in the fact finding exercise [see Lancashire v DE [2010] 196 at para 19]. In my judgment in cases as complex as this that remains a valuable role for the Children’s Guardian to have. With the benefit of hindsight it is perhaps a role that should have been give more robust encouragement in this case at a case management hearing”.

    So we can start to see the impact of the introduction of the “proportionate and safe minimum” rules that Cafcass imposes on its practitioners….which in effect reduces their contribution to the court to a point of near invisibility….irrespective of the other organisational demands, a few years ago the Children’s Guardian would have risen to the challenges of such complex cases….would have been fully involved and given advice and evidence….in short they would have fulfilled their role.

    I am aware that these are only 2 cases amongst many but additional feedback of this kind has also been leaking out from local Family Courts…and the question that needs answering is if the guardians role has been reduced to the point of invisibility by the Cafcass executive….what good is its service….and what are we paying for.

    But what have we here…..a case where the Cafcass FCA is/are…..there are 2 of them in this case……not only visible……but a dispute between the 2 practitioners has led to an unusual case for the judges to adjudicate on….but also causing considerable and some might say unnecessary delay in complicating a private law case.

    Have a read of the judges summary below…….

    You couldn’t make it up could you…..well could you….Cafcass now seems to be entering laughing stock territory.

  5. inflagrantedilecto

    Here is another pickle, with a children’s guardian being precipitated onto centre stage in the case of H (Children) [2012] EWCA Civ 743
    reported on the Family Law Week website. I’ll not go into the full judgement, which is available for all to read but just copy the comments made about the Guardian’s role in the case which the judges state in an aside.

    “As an aside, His Lordship was critical of the representation of the children, which His Lordship felt was too neutral; what the court needed and was entitled to was an independent judgment from the Guardian as to the merits of the appeal. While the court did not encourage unnecessary representation, that is not a bar or fetter on the responsibility of the children’s representatives to take a firm line on appeal”.

    The judge develops his arguments in paragraphs 20 and 21……

    20. “I do want to record the position that the guardian has taken in this appeal. It is a matter of concern to me that the guardian made no contribution to the appeal at all until the 14 May, Monday of this week, when a position statement by Mrs Collins, the children’s guardian, was submitted above the signature of counsel, Mrs Taylor, who appeared below. It seems to be more a position statement than a skeleton argument; perhaps it is a hybrid. But on the same day the guardian’s solicitor sought what was really a reassurance that it would be in order for her to instruct counsel despite the regular admonition from the court that representation at appeals should be kept to a minimum.

    21. What would be the guardian’s position on the appeal given that the judge had rejected her recommendation? It was perfectly to be expected that she might support the appellant to the hilt. However, the position statement of Mrs Collins classically sits on the fence, saying that the judge has of course rejected what she thought best, but perhaps it was within his discretion to do. That is perfectly understood from a social worker, but there was a considerable obligation on the litigation team to support the children in this process. After all, the appeal is crucial to their future, and Mr O’Sullivan who has appeared today in Mrs Taylor’s position has really contributed nothing. He has had no opportunity of talking to the guardian and his instructing solicitor has only talked to him on the practicalities. So effectively he has said, “well, in my position I can only stand by the statement of the 14 May”. In my view that is simply not good enough, and I think that the representation of the children at this appeal is open to plain criticism.

    Now this has to be put in context that the judge appeared to be in error in making his judgements… this situation was not entirely of the Guardian’s own making…but once again we have judicial criticism being leveled at Cafcass current service…and the question asked again…..

    if the Guardian’s role, in tandem with the children’s solicitor is not to robustly represent the children’s interests throughout the lifetime of the proceedings then what is it for?

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