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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R & Ors (Minors), R (on the application of) v The Child and Family Court Advisory and Support Service  EWCA Civ 853 (29 June 2012)
Cite as:  WLR(D) 189,  1 WLR 163,  2 FCR 609,  Fam Law 1319,  2 FLR 1432,  EWCA Civ 853
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice Munby and Mrs Justice Thirlwall
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE MCFARLANE
| The Queen on the application of R, E, J and K (minors by their litigation friend the Official Solicitor)
|- and -
|The Child and Family Court Advisory and Support Service
Mr Roger McCarthy QC (instructed by the Director of Legal Services of the Child and Family Court Advisory and Support Service) for the Respondent
Hearing date : 15th May 2012
Crown Copyright ©
Lord Justice McFarlane :
The facts of the four cases
"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 children's guardian: background
"The tandem model is fundamental to our system and receives strong support .the court needs an impartial social work opinion even though this results in a degree of duplication with the role of the Local Authority social worker."
"the government agrees that the tandem model remains an important vehicle for ensuring that children's wishes, needs and feelings can be understood and independently represented within the court."
The statutory context: Children Act l989
"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) sets out the statutory 'welfare checklist' requiring the court to 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."
(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."
"(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.
(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;
(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; "
"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,
(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.
"(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."
"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."
"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."
The statutory context: Criminal Justice and Court Services Act 2000
"(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 to be noted that s 12(5)(b) has now been repealed, but reference is made to it here as it played a significant role in the decision of Wall J (as he then was) in Re MH (A Child) and Re SB and MB (Children)  2 FLR 1334 to which reference will be made in due course. The reference in s 12 to 'family proceedings in which the welfare of children is or may be in question' includes care proceedings under CA 1989, Part IV.
"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."
Paragraphs 11(1) and (2) of Schedule 2 read:-
"11(1) Different directions may be given under this Schedule for different purposes;
11(2) Directions under this schedule may be either general or special."
The role of the Lord Chancellor under the 2000 Act was transferred to the Secretary of State [now the Secretary of State for Education] by the Transfer of Functions (Children, Young People and Families) Order 2003.
i) The claimants in that case did not seek to rely upon the HRA 1998 and the ECHR;
ii) S 12(2) of the 2000 Act, by use of the word 'must' creates a mandatory, or 'super mandatory' duty, but that duty relates to the making of provisions for the performance of functions. The section does not, by its express language, introduce a need for CAFCASS to make available an officer for appointment as a guardian;
iii) If time limits or targets are to be introduced into the appointment of guardians, then that could be achieved by a direction given by the Lord Chancellor under Sch 2, para 9(2); pending any such direction, decisions made by CAFCASS as to the provision that it makes are governed by established public law principles;
iv) Having reviewed the related provisions in the CA 1989 and the then applicable court rules, Charles J concluded that those provisions pointed to conclusions that (a) there can be a gap between the request for appointment from a court and CAFCASS making an officer available; and (b) the response of CAFCASS should be as soon as practicable after the request is made;
v) The argument that a duty of appointment was owed by CAFCASS 'immediately or forthwith' was based upon an application of the 'no delay' principle (CA 1989, s 1(2)) in children cases to CJCSA 2000, s 12(2). Charles J rejected that argument as being untenable in the context of child cases where, whilst delay as to be avoided, some steps in the process, inevitably, generate delay;
vi) Charles J found that s 12(2) established a general duty and showed that Parliament intended CAFCASS to make practical administrative arrangements. He considered it unlikely that Parliament would have gone further and placed a more onerous duty on CAFCASS than public law would otherwise impose, or a duty to provide a guardian immediately in every case because of the resource and management implications that such a requirement would incur.
The case before the Divisional Court
a) CJCSA 2000, s 12 imposes on CAFCASS various obligations and duties (as well as various functions and powers) which are susceptible to judicial review [paragraph 89];
b) The duty to 'make provision for the children to be represented' (s 12(1)(c)), and to 'make provision for the performance of [the] functions conferred on officers of the Service by virtue of' the CA 1989 (s 12(2)), bite on CAFCASS before any officer is appointed and these are indeed public law duties and are susceptible to judicial review [paragraphs 89 and 90];
c) Sections 12(1)(c) and 12(2) impose a general obligation upon CAFCASS to provide a national scheme, but (in the absence of directions from the Lord Chancellor) it is for CAFCASS to design, man and organise that scheme [paragraph 90];
d) The scheme must make appropriate provision for and it is the duty of CAFCASS to provide an appropriate number of officers to enable it to carry out its functions of providing guardians in care proceedings [paragraph 90];
e) The claimants' arguments based on irrationality were dismissed on the basis that the driver in all four cases that resulted in a delay in appointing a guardian was CAFCASS' lack of resources; its decisions, however, were entirely rational [paragraph 96];
f) The arguments based upon ECHR, Arts 6 and 8 and the UNCRC were rejected and it was held that there was no basis for holding that either the CA 1989 or CJCSA 2000 were incompatible with the Convention [paragraph 97].
'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.
The Appellant's case in the Court of Appeal
a) The ECHR Art 6 right of the child is to effective access to the court and the Art 8 right is to sufficient involvement in the decision making process to provide the requisite representation and protection of the child's interests (original emphasis);
b) A solicitor for the child, acting alone, cannot be an effective substitute for the appointment of a guardian. The whole point of the statutory scheme, and therefore the point of CAFCASS, is for there to be separate and independent representation of a child in care proceedings;
c) The conclusions that CJCSA 2000, ss 12(1)(c) and 12(2) must be construed together and create duties that 'bite' on CAFCASS before the appointment of a guardian are accepted. Nobody but the guardian can fulfil the CA 1989, s 41 function. Nobody but CAFCASS can provide the guardian. If CAFCASS fails, the system fails. If the duty is not owed to individual children, there is no remedy for a fundamental failure in the system;
d) These duties are individual duties and not aspirational or 'target' duties as claimed on behalf of CAFCASS;
e) Lack of resources is not a defence to a failure to perform a statutory duty, nor can it preclude a statutory duty from arising;
f) It is not fatal to the Appellants' case that they cannot identify a specific timetable, or point in time, at which the statutory duty becomes enforceable. This will vary from individual case to case and may be subject to assessment by the court on a case by case basis.
"the child shall in particular be provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".
It is well accepted that the interpretation of rights under the ECHR is to be informed by the terms of the UNCRC (eg R (Howard League for Penal Reform) v Secretary of State for the Home Department  1 FLR 484).
a) Wall J preferred a broad interpretation of the provisions as being one that 'fits well with the overall functions of CAFCASS as a court advisory and support service and is consistent with its duty to safeguard and promote the welfare of children' (paragraph 10);
b) Wall J, in common with the Divisional Court in this case, read s 12(1) regarding functions together with s 12(2) regarding duties;
c) Wall J concluded that 'functions have no meaning or effect unless they are performed or capable of being performed' (paragraph 22);
d) Particular reliance is placed upon the following extract from paragraph 24 of Wall J's judgment:
' 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 obligations 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 ';
e) Wall J considered that it was important to read and give effect to s 12 in a way which was compatible with Convention rights; and
f) Wall J concluded that in construing s 12(5) he was entitled to look at the functions of CAFCASS and give them a purposive construction.
The case for CAFCASS
The Appellants' case in reply
a) The construction of CJCSA 2000 within its context
b) 'Not long', 'too long', 'immediately': is it possible to define the duty?
c) The relevance of Re MH.
d) The decision in R v CAFCASS.
e) The impact of HRA 1998, s 3.
The keystone of the case
The construction of CJCSA 2000 within its context
'Not long', 'too long', 'immediately': is it possible to define the duty?
"All [attempts to define the timescale] 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."
The relevance of Re MH.
a) I accept that a broad interpretation of s 12 which fits with the overall functions of CAFCASS is to be preferred;
b) CJCSA 2000, s 12(1) is to be read together with s 12(2) in describing the duties laid upon CAFCASS;
c) I agree that the functions attributed to CAFCASS can have no meaning or effect unless they are performed or capable of being performed;
d) The 2000 Act imposes obligations on CAFCASS to make provision for the performance of all of the functions that are to be placed upon CAFCASS officers by the Act;
e) It is important to read and give effect to s 12 in a manner which is compatible with ECHR Convention rights;
f) The court is entitled to give a purposive construction to the meaning of these provisions.
"(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."
Given the clear wording of s 12(5)(b) it is, perhaps, not surprising that Wall J came to the conclusion that he did. The stark difference between that express provision which spells out the timescale for the conclusion of the proceedings (and therefore the guardian's role) where a supervision order is made, and the provisions with which we are concerned, where no timescale is stipulated, goes to undermine the appellants' case rather than to support it.
The decision in R v Children and Family Court Advisory and Support Service
The impact of Human Rights Act 1998, s 3
a) A failure by CAFCASS to appoint a children's guardian 'immediately' upon being directed to do so by the family court amounts to a breach of the Art 6(1) and/or Art 8 rights of an individual child who is the subject of the proceedings;
b) In so far as the combined effect of CJCSA 2000, s 12(1)(c) and s 12(2) does not establish an express duty to make an immediate appointment, that state of affairs can be remedied by this court reading the word 'immediate' into the statutory provisions in exercise of its jurisdiction under HRA 1998, s 3;
c) In the circumstances it is not necessary for this court to make a declaration of incompatibility under HRA 1998, s 4.
Lord Justice Richards:
The Lord Chief Justice of England and Wales: