QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|(1) SOPHIE REGESTER AND OTHERS|
|(2) SHARON PERKINS AND OTHERS||(CLAIMANT)|
|CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR NIGEL GIFFIN (instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
MR JUSTICE CHARLES:
Some procedural points.
The limitation of the issues by the arguments advanced
The central argument
The damages claim
The most relevant primary and secondary legislation
"11(1) There shall be a body corporate to be known as the Children and Family Court Advisory and Support Service (referred to in this Part as the Service) which is to exercise the functions conferred on it by virtue of this Act and any other enactment.
(2) Schedule 2 (which makes provision about the constitution of the Service, its powers and other matters relating to it) is to have effect.
(3) Reference in this Act or any other enactment to an officer of the Service are references to-
(a) any member of the staff of the Service appointed under paragraph 5(1)(a) of that Schedule, and
(b) any other individual exercising functions of an officer of the Service by virtue of section 13(2) or (4).
12(1) In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to-
(a) safeguard and promote the welfare of the children,
(b) give advice to any court about any application made to it in such proceedings,
(c) make provision for the children to be represented in such proceedings,
(d) provide information, advice and other support for the children and their families.
(2) The Service must also make provision for the performance of any functions conferred on officers of the Service by virtue of the Act or any other enactment (whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1)).
(3) Regulations may provide for grants to be paid by the Service to any person for the purpose of furthering the performance of any of the Service's functions.
(4) The Regulations may provide for the grants to be paid on conditions, including conditions-
(a) regulating the purposes for which the grant or any part of it may be used,
(b) requiring repayment to the Service in specified circumstances.
(5) In this section, 'family proceedings' has the same meaning as in the Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the Children Act 1989, but-
(a) references to family proceedings include (where the contest allows) family proceedings which are proposed or have been concluded, and
(b) for the purposes of paragraph (a), where a supervision order (within the meaning of the Children Act 1989) is made in family proceedings, the proceedings are not to be treated as concluded until the order has ceased to have effect."
1. The Service is to consist of a Chairman, and not less than ten other members, appointed by the Lord Chancellor.
8(1) The Lord Chancellor may, at any time, pay to the Service any amount he considers appropriate.
(2) If he considers it appropriate, he may make any payment on conditions.
9(1) Functions and other powers of the Service, and functions of any officer of the Service, must be performed in accordance with any directions given by the Lord Chancellor.
(2) In particular, the directions may make provision for the purpose of ensuring that the services provided are of appropriate quality and meet appropriate standards.
(3) The Service must provide the Lord Chancellor with any information relating to the performance of its functions which he may from time to time require.
16. The Service is not to be regarded as the servant or agent of the Crown, or as enjoying any status, privilege or immunity of the Crown; and its property is not to be regarded as property of, or property held on behalf of, the Crown."
Appointment of a guardian and/or a solicitor in specified proceedings.
"41. Representation of a child and of his interests in certain proceedings.
(1) For the purpose of any specified proceedings, the court shall appoint an officer of the service for the child concerned unless satisfied that it is not necessary to do in order to safeguard his interests.
(2) The officer of the service shall-
(a) be appointed in accordance with rules of court; and
(b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules.
(a) the child concerned is not represented by a solicitor; and
(b) any of the conditions mentioned in subsection (4) is satisfied,
The court may appoint a solicitor to represent him.
(4) The conditions are that-
(a) no officer of the service has been appointed for the child;
(b) the child has sufficient understanding to instruct a solicitor and wishes to do so;
(c) it appears to the court that it would be in the child's best interests for him to be represented by a solicitor.
(5) Any solicitor appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.
(6) In this section 'specified proceedings' means any proceedings-
(a) on an application for a care order or supervision order;
(b) in which the court has given a direction under section 37(1); and has made, or is considering whether to make an interim care order,
(c) on an application for the discharge of a care order or the variation or discharge of a supervision order;
(d) on an application under section 39(4);
(e) in which the court is considering whether to make a residence order with respect to a child who is the subject of a care order;
(f) with respect to contact between a child who is the subject of a care order and any other person;
(g) under Part V;
(h) on an appeal against-
(i) The making of, or refusal to make, a care order, supervision order or any order under section 34;
(ii) The making of, or refusal to make, a residence order with respect to a child who is the subject of a care order; or
(iii) The variation or discharge of, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii);
(iv) The refusal of an application under section 39(4);
(v) The making of, or refusal to make, an order under Part V; or
(i) which are specified for the time being, for the purposes of this section, by rules of court.
(10) Rules of court may make provision as to-
(a) the assistance which any officer of the service may be required by the court to give to it;
(b) the consideration to be given by any officer of the service, where an order of a specified kind has been made in the proceedings in question, as to whether to apply for the variation or discharge of the order;
(c) the participation of officers of the service in reviews, of a kind specified in the rules, which are conducted by the court.
(11) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of-
(a) any statement contained in a report made by an officer of the service who is appointed under this section for the purpose of the proceedings in question; and
(b) any evidence given in respect of the matters referred to in the report,
in so far as the statement or evidence is, in the opinion of the court, relevant to the question which the court is considering.
" 1(ii) 'children's guardian'
(a) means an officer of the service appointed under section 41 for the child with respect to whom the proceedings are brought."
"4.10 Appointment of children's guardian
(1) As soon as practicable after the commencement of specified proceedings, or the transfer of such proceedings to the court, the court shall appoint a children's guardian, unless-
(a) such an appointment has already been made by the court which made the transfer and is subsisting, or
(b) the court considers that such an appointment is not necessary to safeguard the interests of the child.
(2) At any stage in specified proceedings a party may apply, without notice to other parties unless the court directs otherwise, for the appointment of a children's guardian.
(3) The court shall grant an application under paragraph (2) unless it considers such an appointment not to be necessary to safeguard the interests of the child, in which case it shall give its reasons; and a note of such reasons shall be taken by the proper officer.
(4) At any stage in specified proceedings the court may, of its own motion, appoint a children's guardian.
(4A) The court may, in specified proceedings, appoint more than one children's guardian in respect of the same child.
(5) The proper officer shall, as soon as practicable, notify the parties and any welfare officer or children and family reporter of an appointment under his rule or, as the case may be, of a decision not to make such an appointment.
(6) Upon the appointment of a children's guardian the proper officer shall, as soon as practicable, notify him of the appointment and serve on him copies of the application and of documents filed under rule 4.17(1).
(7) A children's guardian appointed by the court under this rule shall not-
(a) be a member, officer or servant of a local authority which, or an authorised person (within the meaning of section 31(9)) who, is a party to the proceedings;
(b) be, or have been, a member, officer or servant of a local authority or voluntary organisation (within the meaning of section 105(1)) who has been directly concerned in what capacity in arrangements relating to the care, accommodation or welfare of the child during the five years prior to the commencement of the proceedings; or
(c) be a serving probation officer who has, in that capacity, been previously concerned with the child or his family.
(8) When appointing a children's guardian the court shall consider the appointment of anyone who has previously acted as children's guardian of the same child.
(9) The appointment of a children's guardian under this rule shall continue for such time as is specified in the appointment or until terminated by the court.
(10) When terminating an appointment in accordance with paragraph (9), the court shall give its reasons in writing for so doing.
(11) Where the court appoints a children's guardian in accordance with this rule or refuses to make such an appointment, the court or the proper officer shall record the appointment or refusal in Form C47.
4.11 Powers and duties of officers of the service
(1) In carrying out his duty under section 7(1)(a) or section 41(2), the officer of the service shall have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) as if for the word 'court' in that section there were substituted the words 'officer of the service'.
(2) The officer of the service shall make such investigations as may be necessary for him to carry out his duties and shall, in particular-
(a) contact or seek to interview such persons as he thinks appropriate or as the court directs;
(b) obtain such professional assistance as is available to him which he thinks appropriate or which the court directs him to obtain.
(3) In addition to his duties, under other paragraphs of this rule, or rules 4.11A and 4.11B, the officer of the service shall provide to the court such other assistance as it may require.
(4) A party may question the officer of the service about oral or written advice tendered by him to the court.
4.11A Additional powers and duties of children's guardian
(1) The children's guardian shall-
(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed; and
(b) give such advice to the child as is appropriate having regard to his understanding and, subject to rule 4.12(1)(a), instruct the solicitor representing the child on all matters relevant to the interests of the child including possibilities for appeal, arising in the course of proceedings.
(2) Where the children's guardian is an officer of the service authorised by the Service in the terms mentioned by and in accordance with section 15(1) of the Criminal Justice and Court Services Act 2000, paragraph (1)(a) shall not require him to appoint a solicitor for the child if he intends to have conduct of the proceedings on behalf of the child unless-
(a) the child wishes to instruct a solicitor direct; and
(b) the children's guardian or the court considers that he is of sufficient understanding to do so.
(3) Where it appears to the children's guardian that the child-
(a) is instructing his solicitor direct; or
(b) intends to conduct and is capable of conducting the proceedings on his own behalf,
he shall inform the court and from then he-
(i) shall perform all of his duties set out in rule 4.11 and this rule, other than those duties under paragraph (1)(a) of this rule, and, such other duties as the court may direct;
(ii) shall take such part in the proceedings as the court may direct; and
(iii) may, with the leave of the court, have legal representation in the conduct of those duties.
(4) Unless excused by the court, the children's guardian shall attend all directions appointments in and hearings of the proceedings and shall advise the court on the following matters-
(a) whether the child is of sufficient understanding for any purpose including the child's refusal to submit to a medical or psychiatric examination or other assessment that the court has the power to require, direct or order.
(b) the wishes of the child in respect of any matter relevant to the proceedings including his attendance at court;
(c) the appropriate forum for the proceedings;
(d) the appropriate timing of the proceedings or any part of them;
(e) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application; and
(f) any other matter concerning which the court seeks his advice or concerning which he considers that the court should be informed.
(5) The advice given under paragraph (4) may, subject to any order of the court, be given orally or in writing; and if the advice be given orally, a note of it shall be taken by the court or the proper officer.
(6) The children's guardian shall, where practicable, notify any person whose joinder as a party to those proceedings would be likely, in the opinion of the children's guardian, to safeguard the interests of the child of that person's right to apply to be joined under rule 4.7(2) and shall inform the court-
(a) of any such notification given;
(b) of anyone whom he attempted to notify under this paragraph but was unable to contact; and
(c) of anyone whom he believes may wish to be joined to the proceedings.
(7) The children's guardian shall, unless the court otherwise directs, not less than 14 days before the date fixed for the final hearing of the proceedings-
(a) file a written report advising on the interests of the child; and
(b) serve a copy of the filed report on the other parties.
(8) The children's guardian shall serve and accept service of documents on behalf of the child in accordance with rule 4.8(3)(b) and 4(b) and, where the child has not himself been served, and has sufficient understanding, advise the child of the contents of any document so served.
(9) If the children's guardian inspects records of the kinds referred to in section 42, he shall bring to the attention of-
(a) the court; and
(b) unless the court otherwise directs, the other parties to the proceedings,
All records and documents which may, in his opinion, assist in the proper determination of the proceedings.
(10) The children's guardian shall ensure that, in relation to a decision made by the court in the proceedings-
(a) if he considers it appropriate to the age and understanding of the child, the child is notified of that decision; and
(b) if the child is notified of the decision, it is explained to the child in a manner appropriate to his age and understanding.
4.12 Solicitor for child.
(1) A solicitor appointed under section 41(3) or in accordance with rule 4.11A(1)(a) shall represent the child-
(a) in accordance with instructions received from the children's guardian (unless the solicitor considers, having taken into account the views of the children's guardian and any direction of the court under rule 4.11A(3), that the child wishes to give instructions which conflict with those of the children's guardian and that he is able, having regard to his understanding to give such instructions on his own behalf in which case he shall conduct the proceedings in accordance with instructions received from he child), or
(b) where no children's guardian has been appointed for the child and the condition in section 41(4)(b) is satisfied, in accordance with instructions received from the child, or
(c) in default of instructions under (a) or (b), in furtherance of the best interests of the child.
(2) A solicitor appointed under section 41(3) or in accordance with rule 4.11A(1)(a) shall serve and accept service of documents on behalf of the child in accordance with rule 4.8(3)(a) and 4(a) and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.
(3) Where the child wishes an appointment of a solicitor under section 41(3) or in accordance with rule 4.11A(1)(a) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and the children's guardian shall be given an opportunity to make representations.
(4) Where the children's guardian wishes an appointment of a solicitor under section 41(3) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and, if he is of sufficient understanding, the child, shall be given an opportunity to make representations.
(5) When terminating an appointment in accordance with paragraph (3) or (4), the court shall give its reasons for so doing, a note of which shall be taken by the court or the proper officer.
(6) Where the court appoints a solicitor under section 41(3) or refuses to make such an appointment, the court or the proper officer shall record the appointment or refusal in Form C48.
Access to records of the local authority
Relevant background legislation and some comment thereon.
Trigger or jurisdictional provisions to the compulsory removal of children from their homes
"44(1)Where any person ('the applicant') applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that-
(a) there is reasonable cause to believe that the child is likely to suffer significant harm if-
(i) he is not removed to accommodation provided by or on behalf of the applicant; or
(ii) he does not remain in the place in which he is then being accommodated."
"38(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2).
31(2) A court may only make a care order or supervision order if it is satisfied-
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and.
(b) that the harm, or likelihood of harm, is attributable to-
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or.
(ii) the child's being beyond parental control."
The paramountcy principle, the avoidance of delay, the welfare checklist and the no order principle
"1. - (1) When a court determines any question with respect to-
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it
the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."
"Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."
Thus the court has to consider whether the making of the order sought would be better for the child than making no order.
Parties to proceedings and their public funding
The roles of public authorities and individuals in connection with proceedings under Part IV of the Children Act and for an EPO
(a) The decision maker as to whether there should be an order entitling a local authority to place a child away from his family is the court and only the court, and
(b) the decision maker as to where a child who is the subject of an ICO (or a care order) should live is the local authority (although, as I have mentioned, it can be subject to persuasion by the court with or without the support of the guardian).
The construction argument
(1) The functions conferred on an officer of the service as the children's guardian by the Children Act and the Rules, arise on appointment by the court and not before.
(2) The phrase "as soon as practicable" in Rule 4.10(1) of the FPR 1991 is not confined to matters internal to the court, and includes problems relating to the identification and availability of an officer of the service for appointment as a guardian.
(3) The reference in Rule 4.10(1)(a) to an existing appointment by a court who transferred the proceedings is not confined to the possibility that that court did not request CAFCASS to make an officer of the service available for appointment. Rather it includes the possibility that such request was made but has not been complied with at the time of transfer of the proceedings.
(4) The provisions of s.41 of the Children Act relating to the appointment of a solicitor are not confined to a situation where the court has decided that the appointment of a guardian is not necessary to safeguard the interests of the child. Rather they include the situation where there are practical difficulties in appointing a guardian which will result in a delay in one being appointed.
(i) essential to enable the guardian to perform the duties conferred on him or her under the Children Act and therefore founds, or
(ii) is of sufficient importance to his or her performance of those duties, to found
the conclusion that CAFCASS is under a legal obligation or statutory duty to comply immediately with a request from the court to make an officer of the service available for appointment as the guardian in specified proceedings or, alternatively, to make provisions as described in the alternative argument.
(1) Section 12(2) of the 2000 Act refers to the making of provisions. Therefore, by its language, read alone and with the general functions set out in s.12(1), it imposes a general duty and shows that Parliament intended CAFCASS to make practical administrative arrangements. Thus, it would be surprising if Parliament intended CAFCASS, as a public body, to be subject to duties more stringent than those flowing from established public law principles. As to this argument, I add that (i) an example of Parliament's awareness of resource issues is found in s.13 of the 2000 Act, and (ii) my view, as a general proposition it can be said that, when Parliament provides in general terms for a public body to make provision for particular purposes, it would intend it to have regard to resource and practical issues relating to management and administration.
(2) It seems unlikely that Parliament would have intended that CAFCASS would be under a duty to make a guardian immediately available for appointment in very case because of the resource and management implications this would have (see again R v Secretary of State for Social Services ex p Child Poverty Action Group  2 QB 540).
(3) Where statute imposes an obligation on a public body to take a particular step, that does not normally import any requirement to take that step within a particular time and the general rule is that delay is controlled by the application of established public law principles (which include the Wednesbury test) and not by the reading in of time limits (see for example R v Home Secretary ex parte Rofathullah  QB 219 at 233 A/C and R v Secretary of State for the Environment ex p Birmingham CC (1987) 27 RVR 53 at 55).
(1) The role of the children's guardian in specified proceedings is a very important part of the implementation of the Children Act overall and thus, that in applying normal public law principles it should, subject to legitimate prioritisation of cases and resource considerations, make officers of the service available for appointment as children's guardians as soon as possible after it has been asked to do so by the court.
(2) Having regard to the promotion of the welfare of children who are the subject of specified proceedings, the sooner that an officer of the service is made available for appointment and starts work as the children's guardian, the better it is for that child, his family and, I would add, the court that has to make decisions about the upbringing of that child.