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.

‘Don’t you lot EVER think about the kids?’

No, you are absolutely right. We have spent years acquiring expertise, passed up the opportunity to earn three times as much money in any other area of law you care to choose, regularly work into the night reading graphic details about head injuries and abuse and neglect, and spend 50% of our time telling our feckless clients a few home truths and putting up with tears and swearing and storm outs, all because we don’t give a **** about the children. I’m sorry if I sound a little facetious but really! I can’t THINK of a more stupid job to do if you hated children. If I really hated children I’d go and be a teacher or something.


I do despair sometimes when a children’s guardian can say such a thing to the lawyers in a case. I understand why these things are said, but still. It’s a little insulting and a little upsetting.


But there is a serious point here. Simply because counsel acting on instructions of their client, say the mother or father in care proceedings, pursues an appeal on fairness grounds which will cause delay in a case where the Guardian is clear in her own mind what the outcome should be – does not demonstrate the callousness to the best interests of the child that the quote might suggest.


For what is fairness if it is not something applicable to all parties? If a parent seeks a step to be taken in proceedings to enable them to have a fair trial this may well cause delay but this does not necessarily mean that such a course of action is not child focussed. Delay is better avoided, but an unfair trial is unfair for all concerned. A gap in the evidence that prevents a parent properly pursuing their case for return of their children is a gap in the evidence which has prevented a child from having as good a chance as possible of going home to their family, which increases the risk that they may be avoidably adopted. And a trial which is rushed through to avoid delay at all costs may end up being postponed or appealed and reheard to ensure that it is done thoroughly and fairly – causing unnecessary delay and heartache for all concerned. And then there’s the worst case scenario – a trial that produces the wrong outcome for a child that is not rectified on appeal.


Lawyers understand this whoever they are acting for and whatever their silent views of the merits of their clients case. What some professionals interpret as not caring is no more than our professional ability to take a step back from making judgments about what is or is not worth delaying matters for, and focussing on preparing the case properly so that the judge who has to make the final decision can make the right decision first time round. It is not easy for professionals of any discipline involved in these cases to maintain a professional distance, and it is particularly difficult for social workers and Guardians who are specifically tasked with making recommendations to the court to feel anything but frustrated waiting for their considered views to be acted upon by the court at trial, but the court framework is overlaid upon the social work role for a reason – to protect families, and to protect children. The lawyers are not working against that aim, they are a vital art of the process of getting to the right outcome.


Some cases admittedly look so hopeless or pointless or inevitable that everyone concerned feels that they are going through the motions. But in cases like that I remind myself of the cases I have dealt with where I have found myself succeeding on what I have told the client is a completely hopeless case. That’s neither a mark of my brilliant advocacy skills, nor of my poor judgment – it is a demonstration of the importance of the judicial process.  


So to go back to the question – for my part I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution.

O-VER-LOAD! [Dalek voice effect]

The Guardian reports that 7% of CAFCASS Guardian appointments in care cases are unallocated. That is 653 of a total of 9060 cases. The only surprise there is that the figure for unallocated cases is so low. You can’t get a Guardian for love nor money round these here parts, and Judges have all but given up trying to appoint them in private law cases, along with s7 reports from either social services or CAFCASS, opining ‘but what’s the point Ms Reed, they won’t do it?’. Although I have heard of some other creative judicial attempts at plugging the gap it is truly a sorry state of affairs when a justice system that is founded on the paramountcy principle is unable to secure a Guardian to guide the court how to achieve it’s ultimate goal by making orders that are in the best interests of the children.


But what I want to know having read this article is – what portion of the 739 applications issued in March 09 (79% up on the same month in 2008) have a Guardian appointed? And in how many of those cases issued in March have the children been removed without a Guardian being appointed or at court? The new duty CAFCASS Officer system doesn’t do justice to the seriousness of urgent removals and I have done at least one ICO hearing where the application was for removal where there was no duty Guardian at court, and another where the duty Guardian had not read any of the papers.


On one level 7% unallocated doesn’t sound too bad, but I would hazard a guess that of new applications the proportion is much much higher, and of the 6090 total cases the majority of ‘old’ cases have a Guardian. Crucial – and sometimes irreversible – decisions are made at early hearings in care cases and it is vital that the children’s needs are properly protected. And of course the 7% figure does not include Guardian appointments in private law cases under r9.5 FPR 1991, or the dire situation with respect to s7 reports.


Whilst it is right to prioritise cases in circumstances where CAFCASS are simply unable to meet demand, this really does an injustice for the families which fall in the ‘serious but not that urgent’ category, particularly in private law cases where what might previously have been a short interruption in contact remedied by a swift and robust s7 report can turn into a protracted interruption in the parent-child relationship, which is a massive disadvantage to the parent seeking a contact order, and of course a failure for the children involved. 


I wonder when CAFCASS leadership will stop telling us all ‘we can manage’ and admit that the system is in crisis and needs an urgent increase in its staffing levels? I don’t know what Anthony Douglass means by suggesting CAFCASS is providing a ‘proportionate’ children’s guardian service: either a child needs a Guardian or they don’t and when they do CAFCASS are ordered to appoint one – there is not then a discretion on CAFCASS as to whether or not to comply. As a matter of public policy a child is deemed ALWAYS to need a Guardian in care cases, as set out in the Public Law Outline. Under the PLO CAFCASS are ordered by the court, to appoint a Guardian before the first hearing in every care case. There is a good reason why a Guardian is required to be active before first hearing – a hasty removal in those feverish early days can have a ripple effect that can affect the direction and outcome of a case and can have a long lasting effect on a child’s life.