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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Regester & Ors, R (on the application of) v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin) (17 January 2003)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2003/235.html
Cite as: [2003] EWHC 235 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF | ||
| (1) SOPHIE REGESTER AND OTHERS | ||
| (2) SHARON PERKINS AND OTHERS | (CLAIMANT) | |
| -v- | ||
| 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 ©
- This judgment relates to conjoined applications for a judicial review in two cases. At issue in both cases is the provision by the Children and Family Court Advisory and Support Service ("CAFCASS") of an officer of that service for appointment by the court as a children's guardian in specified proceedings under the Children Act 1989. Expressions used in this paragraph are defined in legislation referred to later in this judgment. When I refer to a guardian, I am rferring to a children's guardian as so defined.
- In the cases under the Children Act 1989 giving rise to these proceedings, the local authority sought and was granted interim care orders ("ICOs"). In one of them the children had been removed from home before the making of the ICOs, first by being taken into police protection and then pursuant to Emergency Protection Orders ("EPOs"). In the other the child remained with her mother in a refuge following the making of the ICO but was later removed by the local authority pursuant to the powers and duties given to it by the ICO on the basis of an assertion that the mother had broken the agreement pursuant to which the local authority agreed that the child should be placed with her at a refuge. An application to discharge the ICO was refused. An ICO was continued on the basis that the child was not returned to the care of her mother.
- When the EPO was made in the first case a guardian had been appointed but that guardian was not available for appointment in the later proceedings for a care order. In both cases the ICOs I have referred to were made before a guardian was appointed. In the second case a guardian was not made available for appointment until after the application to discharge the ICO had been dealt with. Solicitors acting for the children in both cases did not oppose the making of the ICOs and, in the second case, opposed the discharge of the ICO.
- The subject cases therefore involve three of the possible situations when a child is removed compulsorily from the care of his family. Another is removal as a consequence of the making of the first EPO or ICO. When a child is removed and taken into police protection, the maximum period that he or she can be so removed is 72 hours. After that, further placement away from the family has to be pursuant to a court order or by agreement with the persons having parental responsibility for the child.
- The subject cases therefore involve compulsory removal of children from their homes. This is, of course, a very serious step in respect of the life of a child and his or her family. It can be traumatic in the immediate and short term and have long lasting effects.
- The purpose of such removals was to safeguard the welfare of the child until such time as the court was in a position to make a properly informed decision on evidence as to whether it was in the best interests of the child to make a care order or some other order. Should it be needed, confirmation of this is found in paragraph 90 of the speech of Lord Nicholls in Re S, Re W [2002] 2 AC 291 where he is dealing with an ICO. The need for the court to act on evidence is found in, for example, RE H & Others (Minors: Sexual Abuse: Standard of Proof) [1996] AC 563.
- When deciding whether or not to make an application which has the effect of removing a child from the care of his or her parents or carers (or continuing such a removal), local authorities can be faced with difficult decisions which they have to reach on the basis of the information then available to them and against a background of non cooperation or worse from the relevant carers This is one of the reasons why a court is assisted by a children's guardian who looks at the issues independently from the local authority and the parents and has a duty to safeguard the interests of the child.
- Nothing I say in this judgment is intended to detract from, or to be read as detracting from, numerous general statements as to the importance of the guardian in specified proceedings, and thus the role the guardian has in them. An example referring to guardians generally can be found in R oao NAGALOR v CAFCASS [2002] 1 FLR 255 at para 15, where reference is made to R v Cornwall County Council ex parte G [1992] 1 FLR 270 (see 279C).
- I return later to examine the roles of relevant persons in respect of applications for ICOs and EPOs and some of the legislation relating to them. I accept that the fact that an application for an EPO is included within the definition of specified proceedings provides statutory confirmation that the guardian has, or can have, a useful and important role to play in the decision making process before he or she has been able to investigate the instant case in any depth or at all. This follows from the nature of an EPO and the period for which it can last and the qualifications, experience and role of the guardian. I also refer the reader to the tailpiece to this judgment.
- At an early stage issues arose as to whether the present proceedings for judicial review were academic and as to whether the claimants had sufficient interest to bring them. These are no longer live issues.
- Although the evidence before me contains information relating to the facts of each case and the position more generally relating to the provision by CAFCASS of officers of the service for appointment by the court as children's guardians, the manner in which the cases were argued and my conclusion on the point of statutory construction advanced by the applicants mean that it is not necessary for me to go into that evidence.
- The applicants contend that, on the true construction of the relevant primary and secondary legislation, when requested by a court to do so, CAFCASS is under a legal obligation to make one of its officers available for appointment by the court as a guardian for the purposes of specified proceedings (as defined by s.41(6) of the Children Act 1989) and to do so immediately or forthwith. The dispute is as to the timing put on that obligation or duty by the applicants. CAFCASS denies that it owes a duty or obligation to make one of its officers available on that time scale.
- It is common ground that the outcome of these applications turns on this point of statutory construction as to the time limit for making an officer of the service available for appointment as a guardian by the court. Importantly, no alternative time limit was argued for. This, and the points mentioned below (i) limit the issues I have to decide, and (ii) have the result that the two cases are simply vehicles for this construction point.
- This point extends to all specified proceedings as defined by s.41(6) of the Children Act and thus includes (amongst others) proceedings under Part IV for a care order or a supervision order, and proceedings under Part V, which include applications for EPOs.
- It was expressly accepted on behalf of the applicants that they do not seek to rely on the Human Rights Act 1998 and thus Convention rights (in particular Articles 6 and 8) in respect of their argument on the construction of the relevant legislation. In other words, they say that if CAFCASS and the existing legislation had existed prior to the coming into force of the Human Rights Act 1998, it would have been under the duty asserted.
- By their applications the applicants also seek damages pursuant to section 8 of the Human Rights Act 1998. The starting point for this argument is the establishment of the statutory duty or obligation they maintain is imposed on CAFCASS by the English legislation. The Applicants accept that if they fail to establish this they do not have a claim in damages. CAFCASS disputes the damages claim, first on the basis that the alleged statutory duty or obligation does not exist and, if it is wrong about that, on further grounds.
- It was agreed that I should not deal with any aspect of the damages claim.
- CAFCASS is a statutory body created by the Criminal Justice and Courts Services Act 2000 ("the 2000 Act"). It is funded by grant in aid and its sponsoring Government Department is the Lord Chancellor's Department. The level of that grant in aid is negotiated and agreed within Government and it sets the expenditure limits of CAFCASS.
- Sections 11 and 12 of the 2000 Act provide:
- Schedule 2 to the 2000 Act provides, amongst other things, that:
- I also note that in s.13, which deals with the making of arrangements with other services, CAFCASS has to consider whether the arrangements represent good value for money.
- The 2000 Act by s.74 and schedule 7 of statutory instruments (SI 2001/821)) of the Family Proceedings (Amendment) Rules, and SI 2001/818 of the Family Proceedings Court (Children Act) (Amendment) Rules also made a number of minor and consequential amendments to the Children Act, the FPR 1991 and the FPCR 1991 (as defined below) which recognise and give effect to the creation of CAFCASS. They also introduced Rule 4.11A of the FPR 1991 and Rule 11A of the FPCR 1991.
- This is provided for by s.41 of the Children Act which is in the following terms:
- The relevant rules are the Family Proceedings Rules 1991 ("FPR 1991") and the Family Proceedings Court (Children Act) Rules 1991 ("FPCR 1991"). Following amendment in the manner referred to earlier, the most relevant rules which mirror each other are FPR 1991 Rules 4.1, 4.2, 4.7, 4.10, 4.11, 4.11A and 4.12 and FPCR 1991 Rules 1, 2, 7, 10, 11, 11A and 12. The first of these rules defines, amongst other things, the "children's guardian" as follows:
- The next two of these rules add to the definition of specified proceedings pursuant to S.41(6)(i) of the Children Act and make provision as to who the parties to specified proceedings are to be. The parties to these proceedings for which judicial review have based their argument on Rules 4.10, 4.11, 4.11A and 4.12 of the FPR 1991. They provide as follows:
- It was common ground that there is no material difference between the two sets of rules. I agree, but comment that Rule 11(1)(b) of the FPCR 1991 refers to the justices' clerk or the court as opposed to just the court. This reflects the position in a Family Proceedings Court to which FPCR 1991 apply.
- Section 42 Children Act provides that an officer of the service appointed under s.41 shall have a right to examine and take copies of relevant records of the local authority. This right is an adjunct to, and promotes the investigatory and advisory role of, a guardian. No equivalent right is given to a solicitor appointed to represent the child, but a solicitor could seek production of such records and the court could order that production.
- Under this heading I concentrate on the provisions relating to EPOs and ICOs because (i) these were the orders made in the proceedings under the Children Act which led to these applications for judicial review, and (ii) the arguments of the applicants to support the conclusion that the time limit they say applies by reference to the purpose of the provisions relating to the appointment of guardians were based on these provisions. I recognise that the proceedings specified by s.41(6) extend beyond those seeking these orders and indeed I was referred in this respect to the potential for the widening of the definition of specified proceedings by s.122(1)(b) of the Adoption and Children Act 2002 when it comes into force.
- When making an interim order relating to the upbringing of a child, the relevant principles and thus the welfare of the child have to be considered in that context, which may include a substantial dispute as to the existence of the threshold conditions for the making of a final care order. It is highly likely to include at least uncertainty, and often the potential for considerable argument, as to what would best promote the medium to long term welfare of the child.
- Further interim orders which result in a child being removed from his home are also made in and against the background of the general approach and purpose of, and underlying, the Children Act and the European Convention for the Protection of Human Rights ("the Convention") which is that intervention in the family may be appropriate but the aim should be to reunite the family when the circumstances enable that (see Re C & B (Care Order: Future Harm) [2001] 1 FLR 611 at paragraph 34; and, for example, P,C and S v United Kingdom [2002] 1 FLR 631 and a decision of my own in which I refer to a number of the authorities relating to the underlying approach of the Children Act and the Convention BCC v L [2002] EWHC 2372 (Fam) at paras 54 to 67).
- In my view it is important to record and remember these because they are the statutory provisions which have to be satisfied before a child can be removed from his home by a public authority pursuant to orders made in proceedings within the definition of specified proceedings. As to the importance of such trigger provisions see, for example, Re M [1994] 2 AC 424; Marks v Belgium [1979] 2 EHRR 330 at 342, cited in Re W & B: Re W (Care Plan) [2002] 2 FLR 582 at para 56 in the Court of Appeal and in the House of Lords reported as Re S, Re W at [2002] 1 FCR para 53.
- For an EPO the trigger provisions are found in the Children Act Part V S.44(1). This provides, amongst other things, that:
- The trigger provisions for the making of, respectively interim and final care or supervision orders are in Part IV of the Children Act in sections 38(2) and 31(2). They provide as follows:
- As one would expect, the trigger conditions for the making of an EPO and an ICO are lower than those for a care order. Also, as is apparent from the trigger provisions for EPOs and ICOs, they are orders designed to provide interim protection to children and are an important part of the provisions of the Children Act relating to the protection of children and the promotion of their welfare.
- The court is the only public authority that can make an EPO. An EPO can only be renewed once and can have effect for such period not exceeding eight days as may be specified in the order (see s.45 of the Children Act). It is thus a short term measure.
- Section 31(11) of the Children Act provides that a care order includes an ICO (save where express provision to the contrary is made). It follows that s.33 applies to an ICO and thus that an ICO gives the local authority parental responsibility and the power to determine the extent to which the child's parents may meet their parental responsibility for the child.
- Thus, when an ICO is made, the local authority is the decision maker as to where the subject child should live. This is dealt with in its interim care plan.
- Section 38(4) of the Children Act governs the period of an ICO. The first one can be for a maximum of eight weeks and ensuing ones can be for up to four weeks. The court making such an order can provide for shorter periods. Thus, when a court first makes an ICO, it could provide that it is to last for only a few days if it wishes to review the position at the end of that period. By renewal, a child can be the subject of ICOs from the date of the first ICO until a final order is made.
- The court is the only public authority that can make an ICO. When it does so, it has to have regard to s.1 of the Children Act. However, as with a final care order, the court cannot dictate the terms of the care plan and, thus, where a local authority is to place a child. Often, and in the spirit of partnership to promote the welfare of children, if the court (with or without the support of the guardian) is of the view that provisions of the care plan are inappropriate, a local authority will have regard to that view and change its plan. But, if the local authority is unpersuaded, the court can be faced with the difficult choice of refusing an ICO or making such an order based on a care plan with which it does not agree. This problem is reflected in the application made to discharge the ICO in the second case that has given rise to these proceedings, rather than one for an order that the child be placed with her mother. In respect of contact the court can overcome these difficulties by making an order for contact under s.34, but the court has no equivalent power to order where the local authority is to place the child.
- Sections 1(1) and (2) of the Children Act provide:
- The paramountcy principle in s.1(1) only applies expressly and directly to the determination of "any question with respect to the upbringing of the child" which does not extend to all questions within specified proceedings. When it does not apply, for example to a decision to adjourn or to join a party or to order an assessment under s.38(6), the welfare of the child remains as an important factor to be taken into account.
- Section 1(2) states a general principle which still exists even if the question does not arise in any proceedings or the section is not applied to the relevant decision maker.
- Sections 1(3) and (4) set out what is known as the welfare check list and when it is to be applied. Section 1(5) provides that:
- These principles and points fall to be applied having regard to the general approach to be adopted concerning the removal of children from the day to day care of their family referred to earlier.
- As already mentioned, the identity of the parties is dealt with by FPR 1991 and FPCR 1991. Provision is made for the child and the persons with parental responsibility for the child to be respondents to proceedings for an EPO and a care order (and thus an ICO). A parent without parental responsibility is to be given notice of the proceedings.
- For the purposes of funding, proceedings for an EPO or an ICO are Special Children Act proceedings. The standard criteria in s.4 of the Funding Code have to be satisfied. As I understand it, the relevant point here is that public funding could be refused by reference to the previous conduct of the applicant. But the child, his or parents and persons having parental responsibility for the child, are entitled to non means tested and non merits tested public funding for legal representation.
- I add that other specified proceedings (as defined by s.41(6) of the Children Act) fall under the description "other public law children cases" for the purposes of public funding. They are not non means and non merits tested.
- In my judgment it is important to record and remember that:
- Albeit primarily in the context of a final care order, these statutory roles have recently been confirmed by the House of Lords in Re S, Re W. It is also the case that care proceedings under the Children Act are investigatory or have investigatory aspects.
- The duty of the guardian is to safeguard the interests of the child in the manner prescribed by the rules. In performance of that duty, a guardian (amongst other things) investigates and obtains information, considers the issues in the case from the standpoint of the child, and thus independently from the local authority and the parents. In doing so the guardian applies s.1(3) and the general principle referred to in s.1(2) of the Children Act, and advises and makes recommendations to the court.
- Albeit that it is established by authority that if a court disagrees with the views and recommendation of a guardian it should give reasons for so doing, the guardian is not a decision maker as to what, if any, order should be made or as to the terms of a care plan.
- A guardian will have social work experience that will assist the court in reaching its decision. This assistance and the manner in which a guardian safeguards the interests of the relevant child are provided both in court and, importantly, outside the court by the work done and discussions taken part in by the guardian. Further, this assistance can be useful before the guardian has had an opportunity to investigate the circumstances of the relevant family.
- For example, before carrying out his or her own investigations a guardian may be able to provide from an independent social work standpoint, which focuses on the interests of the child, a helpful consideration of (i) the force of the reasoning of the local authority and thus whether the threshold conditions alleged found the order sought, or (ii) what options are open to the court and what further assessments as to placement in, or outside, the family, contact or other matters should be made and as to their timetabling. But it seems to me to be axiomatic that the weight and usefulness of any advice and recommendation the guardian gives as to the order that should be made in a given case, or as to where a child should live whilst information is gathered to enable a final decision to be made increases when the guardian has had the opportunity to investigate.
- Further, at the time an EPO or an ICO is sought and made, unless the guardian has had earlier dealings with the family, he or she will have no personal knowledge of the events that have led the local authority to seek to remove the child from home (or the earlier removal of the child from home) and, inevitably, only a little time for investigation thereof, even if he or she did not have other urgent commitments.
- On the other hand (i) the local authority has to make out the existence of the threshold conditions and the thus the risk of harm, it says, warrants the removal of the child from home based on evidence it has obtained in carrying out its functions, and (ii) the parent or parents of the child will have knowledge of these matters. Thus it is the parents who are in the best position, with the benefit of publicly funded representation, to address and challenge the grounds put forward by the local authority to give the court jurisdiction to make, and for justifying the making of, the order sought on the basis of the care plan advanced.
- Given the need for a guardian to work with the family and the local authority, and the nature of the facts in dispute, it will vary from case to case how appropriate it would be for a guardian to become involved in investigating disputes of primary fact relating to the existence of the threshold conditions. Further, in some cases the nature and seriousness of the harm suffered and the threshold conditions alleged, together with the lack of any realistic alternative family placement, have the consequence that an interim removal of a child into foster care is the only viable solution.
- The guardian is directed to appoint a solicitor (FPR 1991 Rule 4.11A). The solicitor is to represent the child. The solicitor's role is different from the role of the guardian. In particular the solicitor does not have the investigatory or social work roles placed on the guardian. In the cases upon which these proceedings are based, CAFCASS took steps to identify a solicitor from the relevant panel (and thus one who had relevant experience in children work) for appointment by the court, and at the relevant hearings the children were represented by such a solicitor. This was not, and as I understood it was not said to be, an act which satisfied or acted as a substitute for compliance with the duty on CAFCASS to make available an officer of the service for appointment as the guardian by the court. Clearly, to my mind, it does not because of the different roles and expertise of the guardian and the solicitor. But in my view, given that it was not making an officer of the service available who would, as the guardian, have appointed a solicitor to represent the children, this was an appropriate and sensible step for CAFCASS to take and one which promoted the welfare of the children and assisted the court.
- There is an overlap between the roles and expertise of the guardian, the solicitor and indeed the court in examining and testing the strength of the evidence and reasoning that the local authority advances to establish the threshold conditions and the risk of harm to the children. In many ways this is an exercise that a lawyer is trained to, and is well able to carry out. Further, it does not need the participation of a guardian for a solicitor or a court who have some experience of children cases to know that amongst the relevant issues are the nature and strength of the evidence and reasoning of the local authority, an assessment of the response thereto by the parents and the wider family, an assessment whether there is or may be an alternative family placement, contact and directions as to the future conduct of the case.
- It follows from the roles described above that the court has the duty to decide, having regard to the evidence and assistance provided to it, whether an order should be made that has the consequence that a child is removed from home or not returned home after an earlier removal.
- In making an interim order, the court can do so for a very limited period of time. Additionally the court has a range of powers through which it can require the local authority, the parents and others to provide it with further relevant information. For example, at the stage of making an ICO, the court can require (i) the local authority to clearly specify and support its grounds for seeking the order and its reasons for the care plan proposed, (ii) the parents to clearly set out which of the points made by the local authority they dispute and what they propose in respect of the child, including the identity and abilities of any family members who they maintain should care for the child, and (iii) the local authority and others to put in further evidence.
- If the argument advanced by the applicants is correct, its effect is that CAFCASS is under a statutory duty (described in argument as an absolute duty) to make available an officer of the service for appointment by the court as the children's guardian immediately upon its receipt of a request to do so from the court. The rules and general practice of the courts mean that, if this duty is complied with, a guardian will probably be appointed by the clerk to the magistrates or a district judge upon, or shortly after, the time that CAFCASS identifies the officer of the service who is available to act as the guardian and thus before the first substantive hearing, and in any event that an officer of the service will be available for appointment as the guardian at that first hearing. What work the guardian will have been able to do before that first hearing will depend on a number of factors, including his or her other commitments, and the time between the identification and notification of the relevant officer of the service and the hearing.
- The argument therefore leads to the practical consequence that CAFCASS would have to make arrangements that result in it having sufficient officers of the service to enable it in all cases throughout the country to make one available for appointment as a guardian immediately on receipt of a request from the court for it to do so. Further, the pool of officers available for appointment would have to be sufficiently large to enable the officer identified to have the time available to enable him or her to perform his or her duties with regard to the no delay principle. This plainly has resource and staffing implications.
- As I have explained, the manner in which the arguments were put has the result that issues which would be relevant on established public law grounds, relating to resources, staffing and other issues as to what it is practical for CAFCASS to do, or to do within a longer timeframe than that argued for by the Applicants (see for example R v Secretary of State for Social Services ex p Child Poverty Action Group [1990] 2 QB 540; and R v Chief Constable ex p LTF Ltd [1992] 2 AC 418) do not arise here. Also, issues such as those in R (oao KB and others) v MHRT [2002] 5 CCLR 458, where the relevant steps had to be taken speedily, do not arise.
- I start by commenting and making the obvious but important point that the time limit argued for by the applicants does not appear anywhere in the relevant statutory language.
- In my judgment s.12(2) of the 2000 Act is the most relevant section to consider for the purposes of determining the nature and extent of the statutory duty owed by CAFCASS to make an officer of the service available for appointment by the court as the guardian. As I understood it, this was common ground.
- Section 12(2) of the 2000 Act uses the word "must" and is therefore mandatory or "super mandatory". But this mandatory requirement relates to the making of provisions for the performance of functions and thus does not by its express language introduce the need for CAFCASS to make provision to enable it, immediately on request by the court, to make available an officer of the service for appointment as a guardian.
- Further, I agree with the submission made on behalf of CAFCASS that paragraph 9(2) of Schedule 2 to the 2000 Act provides a strong indication that time limits, or targets in or to be achieved by the provisions that are made by CAFCASS, are to be set by directions given by the Lord Chancellor. Pending any such directions, the decisions made by CAFCASS as to the provisions it makes are governed by established public law principles.
- But it seems to me that the reference in s.12(2) to "provision for the performance of functions conferred on officers of the service .... by any other enactment" means that the provisions made "must" (the statutory word) enable those functions to be performed and thus, for example, a specific timetable or absolute obligation in respect of them to be met.
- I therefore turn to the functions conferred on guardians by the Children Act and the Rules made under it.
- First, I make the point that, in my judgment, by not deciding pursuant to s.41 of the Children Act and the Rules, that it is not necessary to appoint a guardian in specified proceedings to safeguard the interests of the relevant child, and thus, by requesting at the issue of such proceedings that an officer of the service be made available for appointment, the court (i) is having regard to the specified proceedings as a whole, and (ii) has not decided that the appointment of a guardian immediately, or in some other defined timescale, is necessary to safeguard the interests of the relevant child. Indeed it was not asserted that the court was making such a decision.
- Further, in my judgment, having regard to the natural meaning of the language used in its context:
- Accordingly, in my judgment, the language of the relevant provisions does not support the applicants' argument. Indeed, in my judgment, it points to conclusions that (i) there can be a gap between the request made by the court and CAFCASS making an officer of the service available for appointment as the guardian, and (ii) the response of CAFCASS should be as soon as practicable after the request is made.
- The argument put was that, having regard to the general principle referred to in s.1(2) of the Children Act (namely that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child) s.12(2) should be interpreted and applied in the sense that when requested to do so by the court CAFCASS is under a legal obligation to immediately or forthwith make available an officer of the service for appointment as the guardian.
- I agree that CAFCASS has to have regard to that general duty and that it is relevant to the interpretation of what provision CAFCASS must make for the performance by its officers of functions conferred on them by the Children Act when acting as a guardian. I would add that, in considering what provisions must be made, regard should also be had to (i) the scheme and purpose of the Children Act, (ii) the general duty of the guardian to safeguard the interests of the child in the manner prescribed by the Rules and (iii) the duties set out in the Rules which include duties to have regard to the principle in s.1(2) and the welfare checklist and to attend all hearings unless excused by the court.
- I would also add that it seems to me that an alternative formulation of the applicants' argument could be that on its true interpretation s.12(2) of the 2000 Act provides that CAFCASS must make provisions that provide that it is to respond to a request by the court to make available an officer of the service for appointment as the guardian in specified proceedings in the immediate manner alleged, or that it must make provisions that enable it to do so, or possibly and alternatively are designed to enable it to do so, in all cases, or in all but exceptional cases. I shall refer to this as the alternative argument.
- It was naturally accepted that in the context of statutory interpretation necessary implication connotes an implication that is compellingly clear (see B v DPP [2000] AC 428 at 464A).
- A duty to have regard to a general principle is far removed from a duty to take a particular step within a particular time. It is a truism to state that the proper application of the no delay principle does not mean that there will never be delays in, or in connection with, specified proceedings. This is because, for example, evidence has to be gathered, sometimes experts have to be instructed and court dates have to be obtained. Some of the delays are essential to enable the court to be properly informed before it makes a final or interim decision. Some of them arise from practical considerations outside the instant case and which apply to other cases of the same or a similar type. Thus it cannot be said that of itself the no delay principle founds a conclusion (i) that all steps in connection with specified proceedings have to be taken immediately, or (ii) that immediately on request from the court CAFCASS has to make available an officer of the service for appointment as a guardian or make provisions that enable it to do this.
- Additionally, proper regard by a guardian and others to the no delay principle does not exclude them from taking account of factors outside the instant case and thus, for example, other commitments and availability.
- It is also a truism that if a guardian is not made available by CAFCASS for appointment until some time after it receives a request from the court to do so, this would probably mean that the time that the guardian actually starts work would be later and this could result in relevant and harmful delay. But, for example, equivalent points can be made in respect of the appointment of an expert who is directed to report and is not immediately available, and other commitments of the guardian. Also delay in starting work may not lengthen the overall period between commencement of the proceedings and the making of interim or final orders.
- Although I accept that, save in an exceptional case, the guardian has an extremely important role in specified proceedings and that, as a general proposition, the welfare of a child who is the subject of such proceedings will be, or at least is likely to be, promoted by the appointment of a guardian before, or if not before at, the first substantive hearing, I am not persuaded that these points or the factors referred to above found the conclusion that on the correct interpretation of the legislation that either (i) the result is that when requested to do so by the court CAFCASS is under a legal obligation or duty to immediately or forthwith make available an officer of the service for appointment as the guardian or (ii) the alternative argument is correct.
- For the reasons given earlier when considering the application of the Children Act, its underlying purpose and the role of the guardian, I have concentrated on the positions in respect of an EPO and an ICO. In my judgment that purpose and role do not lead to the conclusion that appointment of a guardian before or at the first substantive hearing for an EPO or an ICO and attendance of the guardian at that hearing is either
- In particular, in my view, the points I have made as to the role and powers of the court and the overlap between the roles and expertise of the guardian, a solicitor and the court in respect of (i) the important analysis of the grounds advanced by the local authority to satisfy the threshold conditions and the risk that warrants the removal of a child, and (ii) the directions for further evidence and assessments that should be given, indicate that this conclusion as to the legal obligation or duties of CAFCASS is not warranted.
- In reaching this conclusion I have not forgotten that, unless excused from so doing by the court, the guardian is to attend all hearings. But in my judgment the linkage of this duty to the timetabling of the proceedings is insufficient to found either (i) a conclusion that the obligation or duty is as contended for by the applicants or (ii) the alternative argument.
- In argument, by reference to Convention rights under Articles 6 and 8, it was asserted on behalf of the applicants that if they were right an order in specified proceedings made when a guardian had not been made available by CAFCASS would necessarily be unfair. CAFCASS had a number of arguments that, even if the applicants were right as to their interpretation of the duty or obligation owed by CAFCASS, this argument by reference to Convention rights was wrong. However, it seems to me that this argument is a natural extension of the applicants' argument on construction and even on the assumption that CAFCASS is correct, and the applicants' argument does not found a breach of Convention rights, to my mind this assertion of unfairness by the applicants demonstrates a weakness in their argument on construction by reference to the underlying purposes of the Children Act and the role of a guardian.
- This is because the applicants' argument would found the conclusion that the making of an order by the court, which had the effect of removing a child from his or her parents or precluding his or her return to their care, which was made in circumstances where it was quite obvious that as an interim measure it was necessary or appropriate to make such an order to protect a child from the risk of suffering further serious harm (for example when a child has suffered serious fractures and/or head injuries whilst in the care of his or her parents) would be unfair because a public body charged with the administrative function of making officers available for appointment as guardians had failed to do so. To my mind that would be very surprising result and would be contrary to the underlying purpose of the Children Act to promote the welfare of children.
- Further, in my view, it would be surprising if the court could be said to be acting contrary to the scheme and purpose of the Children Act if it proceeds in the absence of a guardian because CAFCASS have not made an officer of the service available for appointment as the guardian in the proceedings when the obligation on the court to appoint a guardian is to do so "as soon as practicable". As I have said, in my view that phrase covers practical difficulties arising from an officer of the service not being made available for appointment.
- I am also of the view that the point that the duty or obligation alleged by the applicants would apply in respect of requests made by the court in all specified proceedings is a factor against the applicants' argument. This is because in some of those proceedings the force of the argument on welfare grounds and by reference to the no delay principle and the underlying purposes of the Children Act that an officer of the service should be made available immediately by CAFCASS and thus appointed before or at the first substantive hearing, is less strong. For example, this is so in respect of (i) eg an application to discharge a care order and (ii) an application for a residence order in respect of a child subject to a care order, and (iii) proceedings referred to in s.122(1)(b) of the Adoption and Children Act 2002 if they are included in the future).
- Additionally, in my judgment, paragraphs 2.62 to 2.71 of the Children Act 1989 Guidance and Regulation Volume 7 Guardians ad Litem and other Court Related Issues, which were relied on by the applicants, do not, when read as a whole, support their argument. This is because, although they include passages which refer to the need for speed and to avoid delay and, in particular, a passage that delays in appointing guardians undermine one of the central principles of the Children Act regarding the avoidance of delay, they also include passages which recognise the need for the body charged with making persons available for appointment as guardians to take account of resources. Further paragraphs 2.65 and 2.71 recognise that in some cases the need for a quick appointment is higher than in others by referring to immediate appointment in applications for EPOs and quick appointments in other cases, for example where the local authority is seeking an interim order on the first hearing of proceedings under s.31 of the Children Act.
- I also mention that in reaching my conclusions expressed above, by reference to the underlying purposes of the Children Act and the no delay principle, I have not put weight on my view that, as a matter of language, the functions conferred by the Children Act and the Rules on a guardian are conferred on appointment. I would have reached the same conclusions if this is wrong and have taken the approach that, in interpreting the 2000 Act, regard should be had to the purpose of the provisions of the Children Act and the Rules relating to the appointment of a guardian rather than their literal effect.
- For the reasons I have given, in my judgment, there is no need to imply that CAFCASS have the immediate duty or obligation alleged by the applicants to make the statutory scheme of the Children Act and the Rules thereunder relating to guardians work properly and fairly.
- I also agree with the following arguments advanced on behalf of CAFCASS:
- These arguments support the conclusion I have reached, without reference to them, having regard to the language of the relevant statutory provisions in their context and the arguments as to what should be implied having regard to the no delay principle and the other matters mentioned earlier.
- For the reasons I have given, in my judgment CAFCASS do not owe the duty or obligation alleged by the applicants, namely that, when requested to do so by the court, CAFCASS is under a legal obligation to immediately or forthwith make available an officer of the service for appointment as the children's guardian in specified proceedings or I would add, a duty or obligation as described in the alternative argument.
- Accordingly, I dismiss the applications.
- I would like to end this judgment by recording and confirming that CAFCASS accept that:
- In my judgment CAFCASS is right to accept these points. They provide strong arguments in favour of the view that CAFCASS should receive funding that is sufficient to enable it to make officers of the service available for appointment as children's guardians in specified proceedings on, or within a very short time after, its receipt of a request to do so from a court.
- Finally, in cases where a children's guardian has not been appointed at the time of a substantive hearing, I would invite the courts and those who appear in them to consider whether the case is one in which the need for assistance from a children's guardian, having regard to his or her particular experience, role or powers, is more urgent than in others and, if so, to remember the extent of the powers of the court and thus, for example, its ability to seek further information, to direct that CAFCASS be informed of this view, to adjourn or to make orders for a very limited period.
- MR GIFFIN: I appear for the defendant. The defendant does not seek his costs in this case.
- MR JUSTICE CHARLES: I make no order.
- MR CRAGG: I have two applications. The first is for detailed assessment of the claimant's publicly funded costs. The second is that I am instructed to ask for permission to appeal. The grounds for that are set out in CPR Part 52.3(6)(a) and (b). The first is that there is a real prospect of success and the other is there is some other compelling reason why permission should be granted. On the first ground, obviously, we have had little time to digest your Lordship's judgment, but it does turn on the statutory interpretation of the provisions involved. We would say that there would be a real prospect of success for reaching the conclusion we advanced. More importantly, on the other compelling reason, this judgment will have an effect on children, courts and of course CAFCASS and local authorities country wide. We do say it is a case which should receive the attention of the Court of Appeal.
- MR JUSTICE CHARLES: I need not trouble you. An application has been made for leave to appeal. I have helpfully been reminded of the grounds. The first is whether the central point has a prospect of success. This is always a difficult one for a judge at first instance to decide, but it seems to me that I have applied well-known and standard principles to the construction of the relevant provisions and to the implication of terms therein. It seems to me that the prospects of success do not warrant the grant of permission to appeal.
- The second is whether there is some other compelling reason. The reason advanced is that the case relates to the welfare of children. That is, of course, a very important matter and one in which there is a high public interest. That point follows inexorably from the very nature of the case. In my view, it does not, as in many other cases which give rise to the same interest, found a grant of permission to appeal in this case. It seems to me that this is a case in which the Court of Appeal should make up its own mind whether or not it wishes to hear an appeal.
MR JUSTICE CHARLES:
Introduction.
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
CAFCASS
"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.
(3) Where-
(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.
Introduction
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."
EPOs
ICOs
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
Practical effect
The language
(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.
Implication
(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 [1990] 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 [1998] 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).
Conclusions
Tailpiece
(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.