England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 July 2011

 


Lord Justice Munby:

1. This is the judgment of the court to which we have each made a substantial contribution.
2. These are test actions, brought by way of judicial review, relating to the duty of the Children and Family Court Advisory and Support Service (CAFCASS) to provide children's guardians for children involved in care proceedings under Part IV of the Children Act 1989.

An overview

3. The Official Solicitor brings these claims on behalf of four children as their litigation friend. All four children have been the subject of care proceedings. In each case there was a very long delay before CAFCASS allocated the child a guardian. The Official Solicitor, with the permission of Holman J, seeks a declaration that CAFCASS acted unlawfully and in breach of statutory duty by failing to allocate a children's guardian "earlier than the respective date on which CAFCASS did so allocate a named guardian." This was refined during the course of argument to "failing to allocate a guardian until such time as s/he was not able effectively to discharge his duties and responsibilities as guardian." In short it was submitted that the allocations were so late that they amounted to no allocation at all.
4. Towards the end of his oral submissions on behalf of CAFCASS Mr Roger McCarthy QC articulated for the first time explicitly the primary submission which, it seemed to us, underpinned his written submissions, namely that CAFCASS owes no public law duty to any child to allocate a guardian. We agreed that Mr Charles Geekie QC on behalf of the Official Solicitor should have time to put further submissions in writing, to which Mr McCarthy then replied, also in writing. We turn to the detail of the submissions on both sides of the argument later in this judgment.

The background

5. CAFCASS or, as it is referred to in the legislation, "the Service" was set up in 2001 in accordance with Chapter II of Part I of the Criminal Justice and Court Service Act 2000, which provided a framework for the provision of a single advisory service to the courts dealing with the welfare of children.
6. CAFCASS now employs 1,130 family court advisers. There are also 300 self-employed practitioners upon whom CAFCASS is able to call. It is uncontroversial, we think, to observe that from its earliest days CAFCASS has struggled with the volume of cases in respect of which its services are required. The early significant difficulties were aggravated from 2008 onwards by a marked increase in the number of care proceedings being issued. We were told that between 2002 and 2010 the number of children and families with whom CAFCASS was involved almost doubled, from 75,370 children and their families to 142,544. Backlogs became commonplace, if not the norm. Concern was such that in December 2009 the President of the Family Division issued interim guidance which reflected an agreement with the Ministry of Justice, the Department for Children, Schools and Families, Her Majesty's Court Service, and CAFCASS "to create a framework for local arrangements as the best method of achieving necessary improvements to assist CAFCASS to deliver their services to children, family and the courts, and thus secure timely outcomes to promote the welfare of children who are the subject of family proceedings." Designated Family Judges across the country issued local guidance. In many areas 'duty' schemes were set up; this meant that an experienced practitioner would consider the papers in cases where a child was the subject of proceedings but no guardian had been appointed. He or she might have discussions with the solicitor and might attend court hearings, depending on the local arrangements. This did not remove the need for a guardian, nor was it intended to.

The facts of the four cases

7. These may be stated relatively shortly. The claimants' cases have been chosen from amongst a very large number of cases from a number of different areas of the country where there have been significant delays in the appointment of a guardian as a result of CAFCASS' repeated failure to allocate guardians. They are not the four worst examples. They are, we are told, and we accept, broadly representative of a range of types of case and a range of delays. We set out the important dates and events below.

The facts of the four cases: R

8. R was born in October 2000. In June 2009 his mother assaulted him in the family home. She placed him in voluntary care. On 28 June 2009 the local authority began care proceedings. As is normal practice the court informed CAFCASS of the proceedings.
9. On 29 June 2009 the court appointed Mr D as R's solicitor. On 1 July 2009 the court ordered that CAFCASS should allocate a guardian as soon as possible. The order was received by CAFCASS on 27 July 2009.
10. At an early stage a CAFCASS duty adviser studied the available information and assessed the overall risk to R as low. This was presumably on the basis that he was in foster care. In addition there was some discussion between the CAFCASS duty adviser and Mr D although CAFCASS have no record of that.
11. A guardian was allocated on 15 September 2009 and appointed by the court on 21 September 2009. Thus 3 months elapsed between R being taken into care and the appointment of a guardian.
12. On 16 April 2010 the guardian left CAFCASS. A second guardian was appointed on 12 May 2010. It is not apparent that there was any involvement in the case by any member of CAFCASS in any capacity during the month from 16 April to 12 May 2010.

The facts of the four cases: E

13. E was born in October 2009. On 26th November 2009, when about one month old, he was taken to hospital with bruises. A paediatrician considered they were consistent with the parents' explanation. At a follow up appointment on 18 December 2009 a radiologist raised the issue of non accidental injury. Social Services became involved. E's parents agreed that he should go to his maternal grandfather who would supervise contact.
14. Care proceedings began on 22 December 2009. Mr D was appointed E's solicitor the next day, 23 December 2009. On 24 December 2009 a duty officer carried out a risk assessment; he read the papers and spoke to the local authority Children's Services team manager. He was satisfied with the measures in place.
15. It is CAFCASS' contention that at a hearing on 2 March 2010 (five months after proceedings began) the CAFCASS officer who had previously been involved on a duty basis indicated to Mr D that he would be able to take on the case. Mr D recalls that the CAFCASS officer had indicated that he might be able to act as guardian if another case finished. Whatever the precise position as between Mr D and the CAFCASS officer the latter was of the view that all that was required at that stage was a 'watching brief' because of a dispute on the medical evidence. Therefore, other than to inform E's parents that he was the guardian he did not participate in the case at all. He forgot to inform the court that he was the allocated guardian.
16. The letter before claim was sent on 8 March 2010. No guardian was ever appointed. The case was discontinued on 13 April 2010.

The facts of the four cases: J

17. J was born in November 2008. He was accommodated by the local authority on 22 December 2008 and remained there for some months. On 30 October 2009 the local authority sent papers about the case to CAFCASS. Proceedings were issued the following day. The first hearing took place on 5 November 2009. We assume that a solicitor for the child was appointed that day since the following day he sent an attendance note of the hearing to CAFCASS, drawing attention to the fact that the court considered the appointment of a guardian for J to be crucial.
18. Notwithstanding persistent chasing by J's solicitor CAFCASS did not allocate a guardian. In February 2010 (three months after the first court hearing) the case was allocated to a duty officer. This meant that a duty officer discussed the case with J's solicitor on one occasion but no guardian was appointed.
19. On 8 March 2010 the claimant's letter before claim was sent to CAFCASS. A guardian was allocated at some stage (we have not been provided with the date) and was appointed, we assume shortly afterwards, on 22 March 2010, that is four months after the first court hearing.
20. In November 2010 J's mother suffered a serious mental health breakdown. She was detained in hospital. There is now a difference in psychiatric opinion about her ability to be an adequate parent to J should she become ill again. The final hearing is expected shortly.

The facts of the four cases: K

21. K was born in July 2009. On 25 August 2009, when he was six weeks old, the local authority began care proceedings because of concerns about his mother's drug use.
22. A solicitor for K was appointed by the court. He repeatedly and persistently contacted CAFCASS, requesting a guardian. A senior practitioner at CAFCASS reviewed the papers on 10 September 2009. For some time a CAFCASS officer was involved on a duty basis only, but she did attend some hearings and participated in discussions.
23. On 22 March 2010 a guardian was appointed, seven months after proceedings began and two weeks after the letter before claim was served in these proceedings. By that stage it was known that there was to be a contested hearing in May 2010 to establish which parent would proceed to the next stage of the assessment process.

The facts of the four cases: the parties' submissions on the facts

24. It is the contention of CAFCASS that in each case a guardian was allocated as soon as was reasonably practicable, reasonably practicable, that is, having regard to CAFCASS' resources and commitments. That is not challenged. The claimants submit that CAFCASS failed in its duty to each of them because in each case the guardian was appointed so late that s/he could not effectively discharge his or her duties and responsibilities.

The proceedings

25. The application for permission to apply for judicial review was issued on 23 June 2010. CAFCASS served its acknowledgement of service and summary grounds of defence on 26 July 2010. The claimants filed an amended claim form on 9 August 2010. On 21 October 2010 Holman J granted permission "to the following extent only":

"to apply for a declaration in the case of each of the four named claimants respectively that in respect of that respective claimant CAFCASS acted unlawfully and in breach of statutory duty by failing to allocate a named child's guardian for the respective child earlier than the respective date on which CACASS did so allocate a named guardian."

CAFCASS filed detailed grounds of defence on 30 November 2010. Both parties subsequently made applications for permission to file further evidence. Directions for the filing of further evidence were given by Lloyd-Jones J on 12 January 2011 and by Munby LJ on 10 February 2011. The evidence put before us included witness statements by the Official Solicitor, Alastair Pitblado, by the Chief Executive of CAFCASS, Anthony Douglas, and by CAFCASS' Operational Director for the South of England, Vince Clark.

26. The hearing took place before us on 10 March 2011. The claimants were represented by Mr Charles Geekie QC and Ms Jenni Richards (now QC). CAFCASS was represented by Mr Roger McCarthy QC. Mr Geekie had come into the case at very short notice only days before the hearing, his predecessor having unexpectedly had to return the brief for pressing family reasons. As we have already mentioned, the way in which the arguments developed during the hearing led us to agree that both sides could, if they wished, supplement their written and oral submissions by lodging further submissions in writing. Mr Geekie and Mr McCarthy both availed themselves of the opportunity. In addition to the skeleton arguments lodged before the hearing (the claimants' dated 21 February 2011 and CAFCASS' dated 7 March 2011) we subsequently received a slightly revised version of an additional document, 'Seven problems about the claim', which Mr McCarthy had deployed during the hearing, together with the claimants' 'Reply' dated 16 March 2011. This, as Mr McCarthy was quick to point out, raised a new case and additional arguments to those put by Mr Geekie during the hearing. We agreed that Mr McCarthy should be permitted to put in further written submissions in response to Mr Geekie's reply. His 'Response to the Claimants' Reply' was lodged on 22 March 2011. Finally, on 29 March 2011, we received an amended agreed Chronology.

The statutory context: the Children Act 1989

27. Care proceedings are regulated by Part I (sections 1-7) and Part IV (sections 31-42) of the Children Act 1989. There is no need to set out the statutory scheme in full. We focus on those provisions which are of particular significance in the present context.
28. Section 1(1)(a) makes the welfare of the child "the court's paramount consideration". Section 1(2) provides that:

"the court shall have regard to the general principle that any delay in determining [any question with respect to the upbringing of a child] is likely to prejudice the welfare of the child."

Section 1(3) provides, by reference to what is colloquially called the 'welfare checklist', that the court:

"shall have regard in particular to –

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question"

Section 32(1) provides that the court:

"shall … –

(a) draw up a timetable with a view to disposing of the application without delay; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to."

29. Section 41 provides, so far as material, as follows:

"(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 so 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 –

/BLOCKQUOTE>

(a) on an application for a care order or supervision order;

…

(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; …"

30. Section 42 provides, so far as material, as follows:

"(1) Where an officer of the Service … has been appointed under section 41 he shall have the right at all reasonable times to examine and take copies of –

(a) any records of, or held by, a local authority … which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned;

(b) any … records of, or held by, a local authority which were compiled in connection with any functions which are social services functions within the meaning of the Local Authority Social Services Act 1970, so far as those records relate to that child;

…

(2) Where an officer of the Service … takes a copy of any record which he is entitled to examine under this section, that copy or any part of it shall be admissible as evidence of any matter referred to in any –

(a) report which he makes to the court in the proceedings in question; or

(b) evidence which he gives in those proceedings.

(3) Subsection (2) has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence."

31. Rules of court are also relevant. At the time of the events with which we are concerned, the relevant rules were, for proceedings in the High Court or the County Court, the Family Proceedings Rules 1991, SI 1991/1247 (FPR 1991), and for proceedings in the Family Proceedings Court, the Family Proceedings Courts (Children Act 1989) Rules 1991, SI 1991/1395 (FPCR 1991). With effect from 6 April 2011 these two sets of rules were replaced by a single set of rules, applying to proceedings in all three courts, The Family Procedure Rules 2010, SI 2010/2955 (FPR 2010).
32. So far as is material for present purposes FPR 1991 and FPCR 1991 were identical (albeit with different numbering) but FPR 2010 made some slight changes, mainly verbal but one of substance. For ease of future reference we set out the current rules, FPR 2010, rather than the previous rules, referring where appropriate to any material changes but ignoring any alterations which do not affect the meaning.
33. FPR 2010 rule 12.6 (FPR 1991 rule 4.10(1), FPCR 1991 rule 10(1)), so far as material, provides as follows:

"As soon as practicable after the issue of proceedings or the transfer of the proceedings to the court, the court will –

(a) in specified proceedings, appoint a children's guardian under rule 16.3(1) unless –

(i) such an appointment has already been made by the court which made the transfer and is subsisting; or

(ii) the court considers that such an appointment is not necessary to safeguard the interests of the child;

…

(c) consider whether to ask an officer of the service … for advice relating to the welfare of the child; …"

FPR 2010 rule 16.3(1) provides that:

"Unless it is satisfied that it is not necessary to do so to safeguard the interests of the child, the court must appoint a children's guardian for a child who is –

(a) the subject of; and

(b) a party to, proceedings –

(i) which are specified proceedings; …"

As can be seen, this largely reproduces what is provided by section 41(1). FPR 2010 rule 12.6(c), it may be noted, is new.

34. The powers and duties of the guardian are set out in FPR 2010 rule 16.20 and Practice Direction 16A (FPR 1991 rules 4.11 and 4.11A, FPCR 1991 rules 11 and 11A). Rule 16.20 so far as material, provides as follows:

"(1) The children's guardian is to act on behalf of the child upon the hearing of any application in proceedings to which this Chapter applies with the duty of safeguarding the interests of the child.

(2) The children's guardian must also provide the court with such other assistance as it may require.

(3) The children's guardian, when carrying out duties in relation to specified proceedings … must have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) of the 1989 Act as if for the word "court" in that section there were substituted the words "children's guardian".

…

(5) The children's guardian's duties must be exercised in accordance with Practice Direction 16A."

35. Practice Direction 16A, so far as material, provides as follows in Part 3:

"How the children's guardian exercises duties – investigations and appointment of solicitor

6.1 The children's guardian must make such investigations as are necessary to carry out the children's guardian's duties and must, in particular –

(a) contact or seek to interview such persons as the children's guardian thinks appropriate or as the court directs; and

(b) obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs be obtained.

6.2 The children's guardian must –

(a) appoint a solicitor for the child unless a solicitor has already been appointed;

(b) give such advice to the child as is appropriate having regard to that child's understanding; and

(c) where appropriate instruct the solicitor representing the child on all matters relevant to the interests of the child arising in the course of proceedings, including possibilities for appeal.

…

How the children's guardian exercises duties – attendance at court, advice to the court and reports

6.5 The children's guardian or the solicitor appointed under section 41(3) of the 1989 Act or in accordance with paragraph 6.2(a) must attend all directions hearings unless the court directs otherwise.

6.6 The children's guardian must 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 that child's 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 on which the court seeks advice or on which the children's guardian considers that the court should be informed.

6.7 The advice given under paragraph 6.6 may, subject to any direction of the court, be given orally or in writing. If the advice is given orally, a note of it must be taken by the court or the court officer.

6.8 The children's guardian must –

(a) unless the court directs otherwise, file a written report advising on the interests of the child in accordance with the timetable set by the court; …

How the children's guardian exercises duties – service of documents and inspection of records

6.9 The children's guardian must serve and accept service of documents on behalf of the child … and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.

6.10 Where the children's guardian inspects records of the kinds referred to in –

(a) section 42 of the 1989 Act (right to have access to local authority records); …

the children's guardian must bring all records and documents which may, in the opinion of the children's guardian, assist in the proper determination of the proceedings to the attention of –

(i) the court; and

(ii) unless the court directs otherwise, the other parties to the proceedings.

How the children's guardian exercises duties – communication of a court's decision to the child

6.11 The children's guardian must ensure that, in relation to a decision made by the court in the proceedings –

(a) if the children's guardian 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 that child's age and understanding."

36. The requirement in paragraph 6.8(a) of the Practice Direction may be contrasted with the previous requirement in FPR 1991 rule 4.11A(7) (FPCR rule 11A(6)) requiring the filing of a report "unless the court otherwise directs, not less than 14 days before the date fixed for the final hearing." It is also to be noted that paragraph 6.5 of the Practice Direction no longer requires the children's guardian to attend directions hearings if the children's solicitor attends; previously (FPR 1991 rule 4.11A(4), FPCR rule 11A(3)) the children's guardian was required to attend all directions appointments unless excused by the court.
37. Since April 2008 practice in care proceedings has been regulated by the Public Law Outline (PLO): see now Practice Direction 12A: Public Law Proceedings Guide to Case Management. So far as is material for present purposes the PLO specifies that the allocation of a children's guardian is "expected" by Day 3 and anticipates that at the First Appointment, by Day 6, the court will (paragraph 13.3(4)) "request the children's guardian or if appropriate another officer of the service … to prepare a Case Analysis and Recommendations for the Case Management Conference or Issues Resolution Hearing"; the CMC is required to be no later than Day 45 and the IRH is to be between 16 and 25 weeks.

The statutory context: an overview

38. No detailed analysis of this statutory regime is necessary. The provisions speak for themselves. All we need say is that the children's guardian is on any view pivotal to the whole scheme. The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian. In a jurisdiction where the State is seeking to intervene – often very drastically – in family life, the legislature has appropriately recognised that determination of the child's best interests cannot be guaranteed if the proceedings involve no more than an adversarial dispute between the local authority and the parents. Parliament has recognised that in this very delicate and difficult area the proper protection and furthering of the child's best interests require the child to be represented both by his own solicitor and by a guardian, each bringing to bear their necessary and distinctive professional expertise.
39. We add only this: the delays in appointing a guardian in each of these four cases were very considerable indeed when compared with the timescales contemplated by the PLO.

The statutory scheme: the Criminal Justice and Court Services Act 2000

40. CAFCASS, as we have noted, is established under Chapter II of Part I of the Criminal Justice and Court Services Act 2000. Section 11(1) provides that CAFCASS:

"is to exercise the functions conferred on it by virtue of this Act and any other enactment."

41. Section 12, entitled "Principal functions of the Service", provides,^[1] so far as material, as follows:

"(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 this Act or any other enactment (whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1)).

…

(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 context 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."

It is correctly common ground that proceedings under Part III of the Children Act 1989 are, within the meaning of section 12(1), "family proceedings in which the welfare of children is or may be in question."

42. Paragraph 9(1) of Schedule 2 to the Act provides that:

"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."

Paragraph 9(2) provides that:

"In particular, the directions may make provision for the purpose of ensuring that the services provided are of appropriate quality and meet appropriate standards."

No such directions have been given. Paragraph 10(1) provides that:

"Subject to any directions given by the Lord Chancellor, the Service may do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions."

R v Children and Family Court Advisory and Support Service

43. Before proceeding any further it is convenient to consider the important decision of Charles J in R v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin), [2003] 1 FLR 953, a case which covers much, though not all, of the ground we have to traverse.
44. That case, like this, involved applications for judicial review arising out of delays in the appointment of children's guardians in care cases. In both of the two care cases Charles J was concerned with the local authority had been granted interim care orders before CAFCASS had been able to provide officers for appointment as the children's guardians. In both cases the children had been removed from their families.
45. It is important to appreciate exactly how the claimants put their case before Charles J. He summarised it as follows (para [12]):

"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 timescale (emphasis added)."

As Charles J made clear (para [13]), "no alternative time limit was argued for." That, as he went on to make clear, limited the issues he had to decide. The claims failed, both applications for judicial review being dismissed.

46. There is much in Charles J's judgment of great importance, and the fact that we do not refer to it all is not to be taken as any indication that we do not agree with him. On the contrary. However, and gratefully taking as read his invaluable survey of the statutory context in which the questions which he (and we) have to answer fall to be considered, we can focus on the central core of Charles J's reasoning.
47. It was common ground before Charles J (paras [13], [65]) that the case turned on the true construction in particular of section 12(2) of the 2000 Act, with the consequence, as he pointed out (para [63]) that he was not concerned with issues such as resources and staffing. Nor, as he pointed out (para [15]), was any reliance placed on the Human Rights Act 1998 or the European Convention for the Protection of Human Rights and Fundamental Freedoms.
48. Addressing section 12(2), Charles J said this (paras [6]-[67]):

"[66] 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.

[67] Further, I agree with the submission made on behalf of CAFCASS that para 9(2) of Sch 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."

49. The reference to "other enactments" in section 12(2) then led Charles J to consider the functions conferred on children's guardians by the 1989 Act and by FPR 1991. He continued (paras [71]-[72]):

"[71] … having regard to the natural meaning of the language used in its context:

(1) The functions conferred on an officer of the service as the children's guardian by the Children Act 1989 and the rules, arise on appointment by the court and not before.

(2) The phrase 'as soon as practicable' in r 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 r 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 1989 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.

[72] 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."

50. Charles J then turned to consider the argument that, as he summarised it (para [73]), having regard to the principle in section 1(2) of the 1989 Act, section 12(2) should be interpreted as meaning 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. Rejecting that argument, he said (paras [77]-[78]):

"[77] 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.

[78] 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."

He added (para [90]):

"… 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 1989 and the rules thereunder relating to guardians work properly and fairly."

51. In conclusion, Charles J said this (para [91]):

"I also agree with the following arguments advanced on behalf of CAFCASS:

(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 every case because of the resource and management implications this would have (see … R (Child Poverty Action Group and Others) v Secretary of State for Social Services and Another [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 (Rofath Ullah) v Secretary of State for the Home Department [1989] 1 QB 219, at 233, and R (Birmingham County Council) v Secretary of State for the Environment [1987] 27 RVR 53 at 55)."

52. We note that Charles J recorded (para [95]) the acceptance by CAFCASS that:

"(1) The role of the children's guardian in specified proceedings is a very important part of the implementation of the Children Act 1989 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 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."

He went on (para [96]):

"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."

53. We respectfully agree with Charles J's reasoning, analysis and conclusions.

The claimants' case

54. Before us, the claimants did not challenge the decision of Charles J, which they accepted was binding upon us [sic],^[2] though making clear that they wished to reserve their position on appeal. They submit that the ratio of the decision is that the duty upon CAFCASS is not to appoint a guardian immediately, but as soon as practicable. They maintain that since the duty to appoint "as soon as practicable" is that of the court, the duty of CAFCASS, faced with an order of the court requiring appointment, or even an expressed desire of the court to appoint, is to comply either forthwith or within the timescales set by the court. Within the meaning of section 12(2), CAFCASS "makes provision" for appointments made by the court at the time fixed by the court. If there is to be any 'leeway', then it is for the court to decide what it should be. Any other system, they say, is fundamentally incompatible with the statutory scheme.
55. The claimants assert that the following propositions can be derived from Charles J's decision. First, the obligation to allocate a guardian for appointment as soon as practicable does not turn the duty to provide a guardian into a discretion to do so. Second, the performance by CAFCASS of its duty to provide a guardian must be exercised compatibly with the statutory scheme under the 1989 Act. Third, the delay that is permissible will vary with the facts of the case: they invite us to compare, for example, the 2 year old in respect of whom the local authority seeks an interim care order and removal to foster care, with the 15 year old able to give instructions to the child's solicitor and in respect of whom only a supervision order is sought.
56. The claimants emphasise that they have never contended for a hard and fast rule setting a time limit for the appointment of a guardian in every case. However, they say, it is possible to establish when a delay in appointment becomes unlawful by reference to principle. First, they submit that the delay will be unlawful if the absence of a guardian becomes incompatible with the statutory scheme. Second, the delay will be unlawful if it results in a breach of either the child's or anyone else's human rights. Applying this approach to the present case they pose the question: In any of these cases was this as a matter of law too long to wait for a guardian? The answer in each case, they submit, is "far too long."
57. Having carefully analysed the statutory scheme under the 1989 Act, read in conjunction with the PLO, the claimants submit that:

i) the timetable for and conduct of care proceedings are tightly governed by the section 1(2) 'no delay' principle and by the detailed timetable laid down in the PLO;

ii) there is no sense that the conduct of care proceedings is geared simply towards an all-important final contest between the parties at or near the end of that period; on the contrary, the rules are designed to avoid confrontation where possible, eliminate all unnecessary issues and avoid sprawling final hearings;

iii) care proceedings are, or should be, 'front-loaded', quasi-inquisitorial, and subject to tight judicial control at all times;

iv) a denial of representation in week 1 is no less significant than a denial of representation in the final week; indeed given the key issue of separation or no separation from parents that arises at the very outset in many cases it is arguably more important for a guardian to be in place at that stage;

v) a wide-ranging ability for CAFCASS to set its own timetable for appointment of the guardian will always be incompatible with such a system.

In summary, they say, reference to the various provisions governing care proceedings and the guardian's role in them leads to the conclusion that although the moment at which delay becomes impermissible will vary from case to case, the window for appointment is narrow. It will not be long, they say, before the absence of a guardian is incompatible with the statutory scheme and therefore unlawful. If there is more than a fairly short delay the guardian when eventually appointed will simply not be able to perform his functions properly; indeed, it will be too late to perform some of them at all.

58. Returning to the facts of the various cases, the point is made that the claimants here, all of whom were too young to instruct a solicitor, were deprived of representation by a guardian at a succession of key stages in the proceedings. We need not set out the detail of the argument; it is readily apparent if one compares the facts of the four cases as we have summarised them with the requirements of FPR 2010, of Practice Direction 16A and of the PLO.
59. The claimants say that what happened here was unlawful not merely as being a breach of the duty imposed upon CAFCASS by section 12 of the 2000 Act but also – and here, it will be appreciated, their arguments go further than the arguments before Charles J – as involving breaches of the procedural protections afforded to them by Articles 6 and 8 of the European Convention and Article 12.2 of the United Nations Convention on the Rights of the Child. They point in this connection to cases such as Airey v Ireland (1979) 2 EHRR 305, V v United Kingdom (1999) 30 EHRR 131, P, C and S v United Kingdom (2002) 35 EHRR 1075, and CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 2 FLR 517.
60. Put shortly, the argument is that, without a guardian, many of the basic safeguards available under Articles 6 and 8 (and Article 12.2) become meaningless. The claimants were denied the effective access to the court guaranteed by Articles 6 and 8. If there is no guardian, the child's case is either not presented at all or presented on the basis of the views of the solicitor, a situation which, it is said, would not be permitted in any other circumstance in the law. After all, as they say, solicitors follow instructions. In CF, as they point out, Munby J (as he then was) held it was necessary that a properly informed social worker be in place to act for the child before she could lawfully be separated from her mother in prison. By analogy, they say, the same applies to each of the claimants; a properly instructed guardian must be in place before they may be separated from their parents. If the moment passes, the consequences may be irretrievable. They accept that the appointment of a solicitor is relevant, but it cannot, they say, affect the primary failing to appoint a guardian. None of the claimants was old enough to be competent to give instructions, so the solicitors were consequently at all material times without instructions. Moreover, they could not carry out the key investigations into the child's social circumstances. They were, in short, hamstrung in their own role. Still less could they take on the role of the guardian.
61. The claimants recognise, in the light Holman J's observations and the limited grant of permission, that the issue is not whether CAFCASS has, for whatever reason, a shortage of human and/or financial resources but rather whether the resulting delays breach its statutory duty. Proceeding on this basis they nonetheless say simply that no resource argument can remedy the breach of a statutory obligation. Limited resources may be a justification for ranking cases in terms of priority but cannot, they say, be a trump card neutralising what is otherwise (as here) a breach of statutory duty or a breach of Article 6 or Article 8.
62. In the circumstances the claimants say that they are each entitled to a declaration that CAFCASS acted unlawfully and in breach of statutory duty by failing to allocate a named child's guardian for them earlier than the date on which CAFCASS did so allocate a named guardian.

The defendant's case

63. On behalf of CAFCASS, Mr McCarthy says that the claimants' case, if stripped of its rhetorical clothing, amounts to this: that CAFCASS owes a specific duty to individual children to follow a particular timetable for allocation of officers for appointment as children's guardian. He disputes that there is any such duty or indeed any duty at all. Since the duty is claimed to reside in statutory or public law, it is to those that he directs our attention.
64. Mr McCarthy identifies what he says are the six crucial issues. Together with the answers he provides to the questions he poses, they can be summarised as follows:

i) Is an individual timetable for allocation prescribed by the statutory framework? No.

ii) If the answer to (i) is no, should one be inferred from the statutory framework? No. Any such implication must be clear and unqualified. It is, he submits, quite impossible to ascertain from the statutory framework how comprehensive, quick, good, effective or fully staffed the provision required by section 12 is to be. Inferences or implications from statute cannot be left to speculation. Section 12 does not provide the answer. Parliament left it to the Lord Chancellor to 'flesh out' the statutory scheme, but he has chosen not to give any directions.

iii) If the answer to either (i) or (ii) is yes, what is that timetable? It is not possible to identify any usable timetable. The claimants do not assert that a timetable can be specified precisely. What form of words is to be used to describe the asserted duty? It is impossible to say.^[3]

iv) If the answer to both (i) and (ii) is no, is an individual timetable created by any other non-statutory rule or principle? No. There is nothing in Article 6 or 8 (or, indeed, in Article 12) to require let alone define any timing approach that can be applied to individual cases.

v) If the answer to (iv) is yes, what is that timetable? Mr McCarthy repeats the answer he has given under (iii).^[4]

vi) If there is an affirmative answer to either (iii) or (v), was that timetable breached in any of the present cases? Given the answers to (iii) and (v) the question does not arise; in any event the answer is no.

65. Mr McCarthy criticises the way in which, he says, the claimants have framed their case. They start with the facts, assert that the delays were far too long and then assert (in reality merely assume) that CAFCASS must have been acting unlawfully. One must on the contrary, he says, start with the law (questions (i)-(v)) before turning (question (vi)) to the facts.
66. Mr McCarthy draws attention to a number of what he says are key indicators in the statutory schemes pointing to the absence of the duty asserted. Thus, he says, "functions" – the word used in the 2000 Act – are not necessarily duties, a word which, as he points out, does not appear in section 12. If Parliament had intended to impose the duty contended for by the claimants, it could easily have done so; it did not. He summarises his case as follows: There is no Parliamentary material suggesting that there was any intention to impose a duty on CAFCASS in relation to individual children; the 2000 Act does not identify an individual CAFCASS duty. Moreover, he says, it is clear from the statutory language that the functions and duties which the 1989 Act, FPR 2010 and Practice Direction 16A confer on a children's guardian do not arise until a particular officer has been appointed. And the consequence of this, he submits, is that the obligation of CAFCASS under section 12(2) of the 2000 Act to "make provision" for "the performance of [the] functions conferred on [an] officer of the Service by virtue of" the 1989 Act, cannot bite until an officer has been appointed to be the children's guardian in the particular case. The obligation to "make provision" is a general obligation going to the provision of a national scheme, which, in the absence of any directions from the Lord Chancellor, it is for CAFCASS to design, man and organise, not least because, as he points out, the work load is constantly shifting and CAFCASS' role is polycentric.
67. So, he says, the statutory framework as a whole points away from the imposition on CAFCASS of a timetable for allocation of an officer for appointment as a guardian. He relies upon Charles J's judgment as supporting his submissions. He makes the point that if CAFCASS is indeed subject to the duty contended for then it would be required to employ and pay for a large number of excess officers to be kept in reserve on a precautionary basis to be available in all areas and at all times, if not immediately then very quickly.
68. In short, he says, the obligations on CAFCASS under section 12 of the 2000 Act are at most general or 'target' duties, not duties conferring enforceable rights on individual children. He seeks to draw an analogy here between the obligations of CAFCASS under section 12 and the duties of a local authority under section 17 of the 1989 Act as expounded in R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208.
69. Mr McCarthy points to what he says is the impossibility of identifying or formulating a workable test for prioritising and timetabling the allocation of officers for appointment as children's guardians as a key deficiency in the claimants' case and a correspondingly central part of CAFCASS' case. As he puts it, a workable test depends on either an addition to the statutory framework or the giving of directions. The 'gap' in the statutory scheme is not one that the court can fill. He illustrates the point by reference to the claimants' skeleton argument where it is asserted, as we have seen, that although the moment at which delay becomes impermissible will vary from case to case, the window for appointment is narrow and that it will therefore not be long before the absence of a guardian is incompatible with the statutory scheme and therefore unlawful. As he observes, the claimants argue for a rule of law that delay which is too long is illegal, yet do not provide (in truth because they are quite unable to provide) any workable test or guideline. The "moment" can only be identified – and in reality only retrospectively – by reference to infinitely varying subjective factors.
70. So far as concerns the claimants' arguments based on Articles 6 and 8, Mr McCarthy submits that they cannot require the statutory framework to be rewritten or expanded to provide an individual duty where none exists, any more than Article 12 can. Moreover, when regard is had to all the other safeguards which are a feature of care proceedings,^[5] delay in appointing a guardian will not of itself give rise to any actionable breach of either Article 6 or Article 8 (or, for that matter, Article 12). For, as Mr McCarthy correctly points out, the critical question, well established in both the Strasbourg and the domestic jurisprudence, is always: Were the proceedings fair considered as a whole and assessing matters overall?
71. In conclusion, Mr McCarthy identified a number of what he called problems about the claim. The most important can be summarised as follows:

i) The claimants are unable to specify any point at which delay becomes unlawful. Phrases such as "too long" or "far too long" cannot be used as a test of legality, especially in relation to a general statutory function, for they lack any precision or certainty.

ii) The only reference to an allocation timetable is in the PLO, which does not, within the meaning of the 2000 Act, create or authorise a function; and any 'functions' which it does recognise are not "by virtue of any enactment."

iii) Nothing in either the 2000 Act or the 1989 Act, FPR 2010 and Practice Direction 16A, imposes any restrictions on how CAFCASS is to discharge its functions before an officer is allocated and all the obligations under the 1989 Act, FPR 2010 and Practice Direction 16A upon which the claimants rely apply only after appointment. The claimants' argument amounts to this: that the personal post-appointment duties of the individual children's guardian determine what CAFCASS as an organisation is to do before allocation. So, says Mr McCarthy, the argument involves the statutory non-sequitur that the absence of anything in the statutory framework specifying what is to happen before appointment does not prevent the post-appointment framework applying on a retrospective basis.

iv) The claimants' suggestion that any 'leeway' is a matter for determination by the family court is inconsistent with the case that the claim raised public law issues entitling the claimants to a declaration that CAFCASS has acted unlawfully, for on this basis the ultimate issue depends on the discretion of the family court. And how can the family court have jurisdiction over CAFCASS' resources, a quintessentially public law matter within the exclusive jurisdiction of the Administrative Court?

v) If the statutory framework does not achieve the outcome for which the claimants contend, is their case then that the framework is incompatible with the Convention? If so, they have sought no declaration of incompatibility.

The claimants' reply

72. In their reply the claimants, as we have observed, sought both to respond to Mr McCarthy's submissions and to raise various new points.
73. By way of reply Mr Geekie suggests that CAFCASS' case amounts to this – a proposition which, he says, cannot possibly be right, since CAFCASS is the only organ empowered to provide representation in care proceedings – that it is not subject to any duty to provide such representation. He disputes that section 12(2) of the 2000 Act is concerned solely with the position after appointment of a guardian. He asked rhetorically, if CAFCASS is correct, then what "provision" is it to make, what function is it to perform? The provision, he says, must relate to making guardians available for appointment, thus enabling their – and CAFCASS' – functions to be performed. It would, he says, be a bizarre state of affairs if Parliament had specifically required CAFCASS to make provision for guardians, once appointed, to perform the function of representing a child but did not require CAFCASS to make any arrangements at all enabling guardians to be appointed. He submits that sections 12(1)(c) and 12(2) of the 2000 Act must be read and construed together; read in that way, and in the context of a need to ensure compliance with Article 6, they impose, he says, "a clear duty to ensure that a child is represented."
74. Article 6 (and Article 8, as Mr Geekie points out, is to the same effect) guarantees the child an effective right of access to the court. And CAFCASS, he says, is the only body that can achieve this. As he puts it:

"That is the point of CAFCASS. Effective performance of function by CAFCASS is the sole route to Article 6 compliance for the child. If there is to be Convention compliance for the child, CAFCASS must perform. That is what it was set up to do."

75. He points to section 78 of the 2000 Act which defines "functions" as including "powers and duties." Moreover, he says, the language of sections 12(1)(c) and 12(2) is focused and specific; it is not merely 'aspirational' in nature nor does it in terms confer a particular measure of discretion on CAFCASS. The roles of CAFCASS and the court are, he says, inextricably linked by section 12. The court cannot fulfil its duty to appoint, and the guardian cannot fulfil his functions, if CAFCASS does not allocate. If, in an individual case, this stalemate is achieved, it cannot be said that CAFCASS is "making provision." On the contrary, it is, he says, in breach of its duty.
76. In their reply, though not previously, the claimants attached considerable weight in this context to the decision of Wall J (as he then was) in Re MH (A Child) and Re SB and MB (Children) [2001] 2 FLR 1334. The question in that case was whether a children's guardian, allocated and appointed as such, had continuing functions to perform once the proceedings had concluded, in particular where a supervision order had been made. Previously it had been clear that the guardian's functions came to an end once the proceedings had concluded: Re G (Social Worker: Disclosure) [1996] 1 FLR 276. Wall J held (paras [10], [20]) that the effect of section 12(5)(b) of the 2000 Act was to continue the proceedings in which the supervision order has been made, at least for the purpose of continuing the role in the proceedings of the children's guardian, until the supervision order has ceased to have effect.
77. This was what he called the 'broad' construction of section 12. He rejected the 'narrow' construction which argued (para [11]), that the 2000 Act had not changed the substantive law; that the role and duties of the children's guardian were laid down by the 1989 Act and FPR 1991; that section 12(5) simply clarified the continuing functions of CAFCASS; and that as section 12(5) was directed to the functions of the service set out in section 12(1), it did not apply to section 12(2) or to the functions conferred on officers of CAFCASS by the 1989 Act.
78. Now that, of course, was an issue very different from the one before us: here the question relates to the duty of CAFCASS to allocate a guardian for appointment; there the question related to the continuing functions of the guardian once appointed. But Mr Geekie points to Wall J's reasoning as illuminating the question we have to consider. The key passages are in paras [21]-[22]:

"[21] For the narrow construction to succeed, it seems to me that s 12(5)(a) and (b) must be read as applying to s 12(1) but not to s 12(2); or, to put the matter another way, that there is a distinction to be drawn between the functions of CAFCASS identified in s 12(1) and the 'provision for the performance of any functions conferred on officers of the Service' in s 12(2). I am unable to read the section in this way.

[22] 'Functions', in my judgment, have no meaning or effect unless they are performed or capable of being performed. The 'functions' referred to in s 12(2) of the Act plainly include functions conferred on children's guardians in family proceedings under the Children Act 1989. I therefore find it difficult to see how the definition of family proceedings contained in s 12(5) – which specifically refers to 'proceedings which are family proceedings for the purposes of the Children Act 1989' does not apply to the family proceedings in which officers of CAFCASS are exercising functions under s 12(2), the more so as s 12(2) itself refers to the performance of functions conferred on CAFCASS by the Children Act 1989 ('any other enactment')."

Wall J added this (paras [24]-[25]):

"[24] … there is no purpose in the Children Act 1989 making provision for the functions of CAFCASS, if it does not, at the same time, make provision for the performance of those functions by the officers of CAFCASS. Sections 12(1) and (2) accordingly do not simply set out the functions of CAFCASS in family proceedings; they impose an obligation on CAFCASS to make provision for the performance of those functions. The word 'also' in s 12(2) can thus only mean that CAFCASS must make provision for the performance of all its functions – whether imposed by the Act or any other enactment. I am, accordingly, unable to draw any meaningful distinction between the functions of CAFCASS and the functions of the officers of CAFCASS – and certainly not such a distinction as would require s 12(5) to apply to s 12(1) and not to s 12(2).

[25] If the only effect of s 12(5)(a) and (b) is to confer on CAFCASS a function under s 12(l) in family proceedings where a supervision [order] is made, and if that function lasts until the supervision order has run its course, what is that function? And how is it to be exercised? On this argument, it must be one of the functions set out in s 12(l)(a)–(d). How can the function have any meaning, if it is not to be performed?"

79. Wall J also considered the implications of the Convention, observing (para [31]):

"So far as it is possible to do so, I have a duty to read and give effect to s 12(5) in a way which is compatible with Convention rights, and in particular Art 8 … I prefer an interpretation of s 12(5) which enables the children's guardian to remain en poste after the making of a supervision order. This interpretation seems to me both more compatible with the functions of CAFCASS, inter alia, to safeguard and promote the welfare of children; it also provides a mechanism for the prevention of breaches of the child's Convention rights which would not exist on the narrow construction … "

80. All this, says Mr Geekie, provides powerful support for the claimants' case.
81. Shifting ground from the arguments previously deployed, Mr Geekie for the first time submitted in his reply that, even if CAFCASS is right in its assertion that it does not have a duty to allocate which is owed to any individual child – a proposition which, of course, he disputes – CAFCASS nonetheless must perform its duties lawfully and in accordance with the ordinary principles of public law, that is, rationally, timeously and in a way which does not defeat the purpose of those functions. CAFCASS, he says, will be in breach of its statutory duty and be acting unlawfully if it fails to perform its core function of providing representation in a particular case by allocating within a timescale which permits the guardian to fulfil his responsibilities. It is contrary to its public law obligations for CAFCASS to assert that its only obligation is to consider any request for allocation but that, having considered the request, it is not required to do anything. Taking this argument to its natural conclusion, he says, it would be lawful on Mr McCarthy's approach for CAFCASS not to allocate a guardian at all in a particular case, or, indeed, in any case. This stance is moreover, he suggests, inconsistent both with the concessions CAFCASS made before Charles J and with the "safe national minimum standards" that CAFCASS itself promulgated in 2007 in its 'National Standards'.

The defendant's response

82. Mr McCarthy's response is, in large measure, that Mr Geekie has misunderstood or mis-described CAFCASS' position. It is not CAFCASS' case that it is not subject to any duty to provide representation, that it has no duty at all. CAFCASS' case was (and is) that, although section 12 includes duty elements, section 12(2) does not impose an individual duty owed to individual children. Its pre-allocation duties under section 12 are general or target duties. He encapsulates his case as being that no timetable is created by the framework, let alone by section 12; that section 12 creates general functions and obligations ("make provision"), and the duty elements are of a general or target nature, the relevant parts of the 2000 Act being cast in broad and flexible terms that are appropriate to general functions; that the 2000 Act does not create a pre-allocation individual duty which is owed to individual children; and that CAFCASS' case is supported by the decision and reasoning of Charles J. He disputes that if CAFCASS's submission is correct, then no "provision" will be made; CAFCASS' case was (and is) he says that the general duty – "must … make provision" – and associated powers give rise to provision in the statutory sense, albeit not necessarily the provision in every case of a guardian on the timescale demanded by the claimants.
83. Mr McCarthy disputes that section 78 adds anything to the claimants' case or detracts in any way from CAFCASS' case. The term "functions" includes a wide range of roles and activities, and is a broad and flexible term embracing both duty and non duty elements, but it leaves unanswered the central question as to the nature and content of the relevant duty.
84. So far as concerns Wall J's judgment in Re MH, Mr McCarthy says that the issue for decision there was quite different from the issue with which we are concerned and that there is nothing in Wall J's analysis and reasoning which bears upon the question of whether section 12 creates individual or merely general duties.
85. Mr McCarthy says that it is not open to the claimants to run a new public law case on rationality, without any amendment and permission; it is not open to them, he says, now to run a case on how CASFCASS might have exercised whatever discretion it may have had. In any event, the case as put forward misrepresents CAFCASS' position. CAFCASS has never argued that all it has to do is to think about the issue of allocation, and that it can then lawfully do nothing. Acceptance of the proposition that if CAFCASS does nothing it will be acting unlawfully, does not lead as a corollary to the entirely different proposition for which the claimants seemingly contend, that there is an individual duty to allocate an individual guardian in every individual case and that any time lag leaves CAFCASS in breach of duty.
86. In relation to the claimants' arguments based on the Convention, Mr McCarthy repeats that there is no claim of incompatibility before the court. More fundamentally, he says, the claimants' whole case simply fails to engage with the relevant Strasbourg and domestic jurisprudence. The claimants' case, he says, involves the unsustainable assertion that non-representation by a guardian at any stage of care proceedings proves a breach of Article 6 (and Article 8); he asserts that it does not.

Discussion

87. We agree both with the conclusion at which Mr McCarthy would have us arrive and with the general thrust, though not with all the detail, of his submissions. CAFCASS, in our judgment, is not subject to the duty for which the claimants contend.
88. As will be appreciated, the arguments deployed before us have ranged far and wide. But at the end of the day they come down to a few central issues. It is on these that we concentrate.
89. Quite clearly, section 12 of the 2000 Act imposes on CAFCASS various obligations and duties as well as various functions and powers. And these obligations and duties are, in principle, amenable to judicial review at the suit of anyone with appropriate locus standi, including, of course, children in the position of the claimants. Included amongst these obligations and duties – and in our judgment they are duties – are those which arise under sections 12(1)(c) and 12(2): the duty to "make provision for the children to be represented in such proceedings" and to "make provision for the performance of [the] functions conferred on officers of the Service by virtue of" the 1989 Act.
90. Moreover, the obligations under sections 12(1)(c) and 12(2), can and do 'bite' before any officer has been appointed to be the guardian in any particular case. We agree with Mr Geekie that section 12(2) is not concerned solely with the position after appointment of a guardian. As he correctly submitted, sections 12(1)(c) and 12(2) must be read and construed together. Mr McCarthy recognises that they impose a general obligation to provide a national scheme. And we accept, as a general proposition, his submission that, in the absence of any directions from the Lord Chancellor, it is for CAFCASS to design, man and organise that scheme. But given the language of sections 12(1)(c) and 12(2) the scheme must make appropriate provision for – it is the duty of CAFCASS to provide, whether by employment of staff or of independent sub-contractors – an appropriate number of officers to enable it to carry out its function of providing guardians in care proceedings.
91. This, however, is far from saying that the obligations and duties which arise under sections 12(1)(c) and 12(2) include, as Mr Geekie would have it, what Mr McCarthy calls an individual or specific duty owed to individual children to allocate a guardian, let alone a duty to do so within any particular timescale. In our judgment they do not. The relevant duties under sections 12(1))(c) and 12(2) are, as Mr McCarthy correctly submits, general duties; they do not confer enforceable rights on individual children. Mr Geekie submits that sections 12(1)(c) and 12(2) impose a clear duty to ensure that a child is represented. We do not agree. There is a general duty imposed on CAFCASS to ensure that children are represented, but that is not to say that there is a specific duty to ensure that a particular child is represented.
92. Moreover, and in any event, it is simply not possible to spell out of sections 12(1)(c) and 12(2) any obligation to do anything in any particular case within any particular timescale. The claimants have been unable to formulate any clear and workable test. Charles J has held that there is no duty to provide a guardian 'immediately or forthwith' and Mr Geekie does not contend that there is. Various formulations have been suggested by the claimants: 'as soon as practicable', 'in time to enable the guardian effectively to discharge his duties and responsibilities', if the absence of a guardian becomes 'incompatible with the statutory scheme under the 1989 Act', or if the delay in appointment results in 'a breach of the child's (or anyone else's) Convention rights'. All suffer from the defect that, as Mr Geekie acknowledges, the permissible delay will vary with the facts of the individual case, though he asserts that what he calls the window for appointment will always be narrow, for more than a fairly short delay will be impermissible. They also suffer, as Mr McCarthy correctly points out, from the defect that the point at which delay becomes impermissible can only be identified in retrospect.
93. The most that can sensibly be read into sections 12(1)(c) and 12(2) is an obligation to appoint 'as soon as reasonably practicable' but, and this is the key point, as soon as reasonably practicable having regard to CAFCASS' general functions and duties under section 12, to its resources (both human and financial) and to the various competing demands upon it.
94. Charles J referred in a passage we have already cited to legitimate prioritisation of cases and resource implications but implicitly agreed with the acceptance by CAFCASS that:

"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."

We agree with that approach, which in our judgment correctly encapsulates the nature of the duty under section 12. But at the risk of repetition we stress two points: this is reasonable practicability assessed having legitimate regard to CAFCASS' resources and its obligations to children in other cases, not reasonable practicability assessed exclusively through the eyes of the court in a particular care case; and this obligation is a general one, not an individual or specific duty owed to the individual child in a particular case.

95. We conclude with three final observations. As we have already said, we respectfully agree with Charles J's reasoning, analysis and conclusions in the earlier Cafcass case. We also respectfully agree with Wall J's reasoning, analysis and conclusions in Re MH. There is, in our judgment, no inconsistency between the two decisions. But Re MH does not take us where Mr Geekie would have us go.
96. We do not, with all respect to Mr Geekie, think that the last minute attempt to mount a case against CAFCASS based on alleged irrationality takes the claimants anywhere. Quite apart from the fact that this raises a wholly new case, the simple fact is that there is nothing whatever in the voluminous material which has been presented to us which even begins to suggest that there is any basis for challenging CAFCASS' decisions in any of these four cases on the ground of irrationality or, indeed, on any other public law ground. The driver in all four cases was CAFCASS' lack of resources. Its decisions were entirely rational. If those decisions were unlawful as being in breach of statutory duty or in breach of the Convention, then cadit quaetio. But if they were not unlawful on either of those grounds, then there is, on the materials we have been shown, no other basis for any public law challenge.
97. Finally, and this of course was an issue not canvassed before Charles J, we cannot accept that the Convention has the effect for which Mr Geekie contends. There is no basis for any contention that the relevant parts of either the 1989 Act or the 2000 Act are incompatible with the Convention. In our judgment, they are not. And for the reasons given by Mr McCarthy, mere delay in the allocation and appointment of a guardian does not of itself give rise to any actionable breach of either Article 6 or Article 8. Delay in the allocation and appointment of a guardian does not, of course, absolve the family court from its obligation to ensure that there is no breach of the Convention. Non-representation by a guardian at some stage(s) of the proceedings does not necessarily amount to a breach of the Convention. We do not accept the argument that without a guardian many of the basic safeguards under Articles 6 and 8 become "meaningless".
98. After we had prepared this judgment, and very shortly before we handed it down, Mr Geekie helpfully directed our attention to the decision of Sir Nicholas Wall P in A County Council v K and others [2011] EWHC 1672 (Fam). He did not suggest, and having now read it we do not think, that the President's judgment has a direct bearing on anything we have to decide. We see no reason to change anything we have said, and have not done so.

Conclusion and order

99. We conclude, accordingly, that these claims for judicial review fail and must be dismissed. We invite counsel to agree an appropriate order.
100. We end with this comment. This case is about resources, or rather the inadequacy of the resources made available to CAFCASS to enable it to perform its vitally important functions; functions which, it must never be forgotten, are directed to protecting and enhancing the welfare of some of the most vulnerable and damaged in our society. Charles J concluded his judgment in the earlier Cafcass case by referring to:

"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."

It would seem, unhappily, that this has been ignored. It is surely a serious question for government and Parliament whether the state of affairs revealed, and not for the first time, by these cases can continue to be tolerated.

Note 1    Section 12(5)(b) has in fact been repealed. We set it out because it was central to the decision in Re MH (A Child) and Re SB and MB (Children) [2001] 2 FLR 1334 to which we refer below.    [Back]

Note 2    Whatever the ambit of stare decisis in the Divisional Court, it is clear that the Divisional Court cannot be ‘bound’ by a previous decision of a single judge of the High Court. At its highest the matter is one of judicial comity.     [Back]

Note 3    Mr McCarthy illustrates the difficulty by asking rhetorically, is it to be “forthwith”, “as soon as practicable”, “as soon as (reasonably) possible”, “very quickly”, “without delay”, “a (very) short time after the start of the case”, “when the court directs” or “sufficiently quickly to fulfil all the tasks of the children’s guardian that might be needed in the case”?     [Back]

Note 4    He asks rhetorically, is it to be “sufficiently quickly to allow the child effective access to the court”, or “sufficiently quickly to ensure that the child’s Article 6 (Article 8 or Article 12) rights are preserved”?     [Back]

Note 5    Mr McCarthy referred in this connection to such matters as the fact that the court is a specialist tribunal charged to be proactive in protecting the child’s welfare, which is its paramount concern, that the court is itself a public body within the meaning of section 6 of the Human Rights Act 1998, and therefore obliged to perform its functions in a Convention compliant manner, that the court’s procedures are geared to ensuring that the child’s interests are protected, and that, importantly, there is automatic representation of the child by a solicitor who will always be expert in the field.     [Back]