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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A County Council v Children and Family Court Advisory and Support Service (Cafcass)  EWHC 2369 (Fam) (20 September 2019)
Cite as:  1 WLR 6749,  3 FCR 742,  EWHC 2369 (Fam),  WLR(D) 537,  WLR 6749
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Strand, London, WC2A 2LL
B e f o r e :
| A County Council
|- and -
Ms M Carew (instructed by Cafcass) for the Respondent
Hearing dates: 30th August 2019
Crown Copyright ©
The Hon. Mr Justice Keehan :
i) whether a non subject child should be directly involved in these proceedings; and
ii) to undertake a Re W assessment of the child to assist the court to be taken in relation to the said allegation in the context of these proceedings."
"And upon the issue as to 'whether it is within the power of the court to request Cafcass to assist the court to undertake an assessment (including a Re W assessment) of a child involved but not the [subject] children [act] proceedings' being considered a matter of general importance in family proceedings and for that reason to be referred to a Judge of the Family Division."
Hence the matter was allocated to me as the FDLJ of the Midland Circuit.
The Statutory Framework
"Principal functions of the Service.
(1) In respect of family proceedings in which the welfare of children [other than children ordinarily resident in Wales] 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)).
(3) Regulations may provide for grants to be paid by the Service to any person for the purpose of furthering the performance of any of the Service's functions.
(4) The regulations may provide for the grants to be paid on conditions, including conditions—
(a) regulating the purposes for which the grant or any part of it may be used,
(b) requiring repayment to the Service in specified circumstances.
(5) In this section, "family proceedings" has the same meaning as in the M1Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the M2Children Act 1989, but—
(a) references to family proceedings include (where the context allows) family proceedings which are proposed or have been concluded"
(1) A court considering any question with respect to a child under this Act may—
(a)ask an officer of the Service or a Welsh family proceedings officer; or
(b)ask a local authority to arrange for—
(i)an officer of the authority; or
(ii)such other person (other than an officer of the Service or a Welsh family proceedings office] ) as the authority considers appropriate,
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.
(2)The Lord Chancellor may after consulting the Lord Chief Justice, make regulations specifying matters which, unless the court orders otherwise, must be dealt with in any report under this section.
(3)The report may be made in writing, or orally, as the court requires.
(4)Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of—
(a)any statement contained in the report; and
(b)any evidence given in respect of the matters referred to in the report,
in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering.
(5)It shall be the duty of the authority or officer of the Service or a Welsh family proceedings officer to comply with any request for a report under this section."
It is submitted that the power to make such an order is limited to the subject child of the proceedings.
"41 Representation of child
(1)or the purpose of any specified proceedings, the court shall appoint an officer of the Service or a Welsh family proceedings officer] 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 or Welsh family proceedings officer 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."
'specified proceedings' are defined in s41(6) of the Act.
'specified proceedings' are defined in s41(6) of the Act.
"Rules of court may make provision as to—
(a) the assistance which any officer of the Service or Welsh family proceedings officer may be required by the court to give to it;
(b) the consideration to be given by any officer of the Service or Welsh family proceedings officer, where an order of a specified kind has been made in the proceedings in question, as to whether to apply for the variation or discharge of the order;
(c) the participation of officers of the Service or Welsh family proceedings officers in reviews, of a kind specified in the rules, which are conducted by the court."
I shall refer to the significance of this provision later in this judgment.
The Family Procedure Rules
"Appointment of a children's guardian in specified proceedings or proceedings to which Part 14 applies
(1) 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; or
(ii) to which Part 14 applies.
(Rules 12.6 and 14.6 set out the point in the proceedings when the court will appoint a children's guardian in specified proceedings and proceedings to which Part 14 applies respectively.)
(2) At any stage in the proceedings –
(a) a party may apply, without notice to the other parties unless the court directs otherwise, for the appointment of a children's guardian; or
(b) the court may of its own initiative appoint a children's guardian.
(3) Where the court refuses an application under paragraph (2)(a) it will give reasons for the refusal and the court or a court officer will –
(a) record the refusal and the reasons for it; and
(b) as soon as practicable, notify the parties and either the Service or the Assembly of a decision not to appoint a children's guardian.
(4) When appointing a children's guardian the court will consider the appointment of anyone who has previously acted as a children's guardian of the same child.
(5) Where the court appoints a children's guardian in accordance with this rule, the provisions of Chapter 6 of this Part apply.
Appointment of a children's guardian in proceedings not being specified proceedings or proceedings to which Part 14 applies
(1) Except in proceedings under section 55A of the 1986 Act1 and without prejudice to rule 8.42 or 16.6, the court must appoint a children's guardian for a child who is the subject of proceedings, which are not proceedings of a type referred to in rule 16.3(1), if –
(a) the child is an applicant in the proceedings;
(b) a provision in these rules provides for the child to be a party to the proceedings; or
(c) the court has made the child a party in accordance with rule 16.2.
(1A) Without prejudice to rule 16.6, in proceedings under section 55A of the 1986 Act, the court must appoint a children's guardian for a child where—
(a) the court has made the child a party in accordance with rule 16.2; and
(b) the child is the person whose parentage is in dispute in those proceedings
(2) The provisions of Chapter 7 of this Part apply where the appointment of a children's guardian is required in accordance with paragraph (1) or paragraph (1A).
('children's guardian' is defined in rule 2.3.)"
"Powers and duties of the children's guardian
(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, other than placement 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'.
(4) The children's guardian, when carrying out duties in relation to proceedings to which Part 14 applies, must have regard to the principle set out in section 1(3) and the matters set out in section 1(4)(a) to (f) of the 2002 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.
(6) A report to the court by the children's guardian is confidential."
"Powers and duties of children's guardian
(1) The children's guardian –
(a) has the powers and duties set out in Practice Direction 16A; and
(b) must exercise those powers and duties in accordance with Practice Direction 16A.
(2) Where the children's guardian is an officer of the Service or a Welsh family proceedings officer, rule 16.20 applies to a children's guardian appointed in accordance with this Chapter as it applies to a children's guardian appointed in accordance with Chapter 6."
"Children's Guardian Appointed under Rule 16.3
How the children's guardian exercises duties – investigations and appointment of solicitor
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.
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.
Where the children's guardian is authorised in the terms mentioned by and in accordance with section 15(1) of the Criminal Justice and Court Services Act 2000 or section 37(1) of the Children Act 2004 (right of officer of the Service or Welsh family proceedings officer to conduct litigation or exercise a right of audience), paragraph 6.2(a) will not apply if the children's guardian intends to have conduct of the proceedings on behalf of the child unless –
(a) the child wishes to instruct a solicitor direct; and
(b) the children's guardian or the court considers that the child is of sufficient understanding to do so.
Where rule 16.21 (Where the child instructs a solicitor or conducts proceedings on the child's own behalf) applies, the duties set out in paragraph 6.2(a) and (c) do not apply.
How the children's guardian exercises duties – attendance at court, advice to the court and reports
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.
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.
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.
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; and
(b) in proceedings to which Part 14 applies, where practicable, notify any person the joining of whom as a party to those proceedings would be likely, in the opinion of the children's guardian, to safeguard the interests of the child, of the court's power to join that person as a party under rule 14.3 and must inform the court –
(i) of any notification;
(ii) of anyone whom the children's guardian attempted to notify under this paragraph but was unable to contact; and
(iii) of anyone whom the children's guardian believes may wish to be joined to the proceedings.
(Part 18 sets out the procedure for making an application to be joined as a party in proceedings.)"
"Appointment of Children's Guardian under Rule 16.4
Section 1 – When a child should be made a party to proceedings
Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the Service or a Welsh family proceedings officer to carry out further work or by making a referral to social services or, possibly, by obtaining expert evidence.
The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order –
(a) where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party;
(b) where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties;
(c) where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;
(d) where the views and wishes of the child cannot be adequately met by a report to the court;
(e) where an older child is opposing a proposed course of action;
(f) where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;
(g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;
(h) where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of an officer of the Service or Welsh family proceedings officer;
(i) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;
(j) where there is a contested issue about scientific testing.
It must be recognised that separate representation of the child may result in a delay in the resolution of the proceedings. When deciding whether to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child. The court's primary consideration will be the best interests of the child.
When a child is made a party and a children's guardian is to be appointed –
(a) consideration should first be given to appointing an officer of the Service or Welsh family proceedings officer. Before appointing an officer, the court will cause preliminary enquiries to be made of Cafcass or CAFCASS CYMRU. For the relevant procedure, reference should be made to the practice note issued by Cafcass in June 2006 and any modifications of that practice note.
(b) If Cafcass or CAFCASS CYMRU is unable to provide a children's guardian without delay, or if for some other reason the appointment of an officer of the Service of Welsh family proceedings officer is not appropriate, rule 16.24 makes further provision for the appointment of a children's guardian.
Section 2 – Children's guardian appointed under rule 16.4
Duties of the children's guardian
It is the duty of a children's guardian fairly and competently to conduct proceedings on behalf of the child. The children's guardian must have no interest in the proceedings adverse to that of the child and all steps and decisions the children's guardian takes in the proceedings must be taken for the benefit of the child.
A children's guardian who is an officer of the Service or a Welsh family proceedings officer has, in addition, the duties set out in Part 3 of this Practice Direction and must exercise those duties as set out in that Part."
i) r.16.5(1) provides that a child must have a litigation friend to conduct proceedings, subject to the provisions of r.16.6, where a child is a party to proceedings but is not the subject of those proceedings; and
ii) r.16.11 FPR provides that the court may appoint as a litigation friend:
a) the Official Solicitor;
b) an officer of the Service (ie Cafcass) or a Welsh family proceedings officer; or
c) some other person
but only if they consent to the appointment.
The Submissions of the Local Authority
i) s.12(1)(b) provides that it is a function of Cafcass to "give advice to any court about any application made to it in [family] proceedings";
ii) r.16.20(2) provides that "the children's guardian must also provide the court with such other assistance as it may require";
iii) paragraph 6.1(b) of PD16A provides "obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs must be obtained"; and
iv) paragraph 6.6(f) of PD16A provides the children's guardian must advise the court on "any other matter on which the court seeks advice".
"3.In response to F's application for contact, C's mother (M) asserted that F had been violent to her during their relationship. Her allegations, which F denied, were considered material to the issue of contact and it was directed that there was to be a fact finding hearing. M wanted her older child (a daughter, G, who was born in January 2001 so is now 13 years old) to give evidence at the fact finding hearing about some of the violent incidents, those in question having occurred during 2011, and her application to this end was considered by Judge Cameron on 12 February 2014. She ordered the involvement of a Family Court Adviser from CAFCASS ("the Adviser") who was to see G to explore matters further. It is against this that F appeals to this court, with permission of the judge herself.
4.The order that Judge Cameron made is detailed. The preamble set out that "before determining the issue of whether G should answer questions or whether G should give evidence it is necessary for the Court to obtain a report from a Family Court Adviser on the issues set out below". In the body of the order it was provided that the officer was to "meet G on probably 2 occasions" and then to provide "a section 7 report in accordance with the decision in Re W  UKSC 12 and the Working Party of the Family Justice Council Guidelines December 2011  Fam Law 79 to assist the court as to whether (and if so how) G should answer questions put in writing and/or to give evidence at the fact finding by videolink".
5.In fact, the "consequential provisions" of the order which followed entrusted rather more discretion to the Adviser than these general passages imply and envisaged that she may actually proceed to put questions to G. The parties were directed to agree and provide to the Adviser "a list of proposed questions ….that they would seek to be put to G". The officer was then to meet G in a neutral venue and it was:
"left to the Adviser's professional judgment as how to conduct the interviews and whether or not the questions should or should not be put to G and if so the format and formulation of the questions or any additional questions the Adviser feels appropriate to the issues in Re W but the Court's provisional expectation would be that none of the questions proposed by the parties should be put on the first occasion or until the Adviser feels appropriate"
6.The order set out what the court wanted the report to cover, namely (1) whether it would be "appropriate and/or within G's best interests or potentially harmful for G" to answer any questions drafted by the parties and/or to attend court to give evidence and be cross-examined, whether by video-link or otherwise, at the fact finding hearing (2) whether G was willing to answer questions or attend a fact finding hearing to give oral evidence and (3) if the Adviser decided it was appropriate to put the questions to G, a report of her answers."
The Submissions of Cafcass
"On its wording and in its immediate statutory context, the natural reading of s.12 is that it is concerned with establishing a general framework of operation for CAFCASS, not with creating duties owed to individuals. The purpose of the section is to lay down the principal functions of the body established by s.11. By s.78, those functions include both powers and duties. By paragraph 9 of schedule 2, they are to be performed in accordance with any directions given by the Lord Chancellor (for Lord Chancellor now read Secretary of State – see note at paragraph 28 above). All of this is very general in nature. So too is the wording of the functions themselves. That is true not only of the functions in subsection (1), to "safeguard and promote the welfare of children", "give advice to any court …", "make provision for the children to be represented …" and "provide information, advice and other support …", but also of the duty in subsection (2) to "make provision for the performance of any functions conferred on officers of the Service …". There is nothing in any of this to suggest a legislative intention that all or any of the duties created by s.12 are owed to the individuals for whose benefit the functions are to be performed. On the face of it, these are general public law powers and duties. Nor was our attention drawn to anything within the other parts of the CJCSA 2000 that might suggest a different view."
"It is plainly good practice for the court to be furnished with a written report from the children's guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only 'harm' but also the other side of the balance described in the Guidelines, namely the possible advantages that the child's testimony will bring to the determination of truth."
i) in these cases the power of the court to make such an order was not raised nor considered;
ii) none of the cases were referred to Cafcass legal; and
iii) none of the courts in these cases heard argument on the point nor gave a judgment on the same.
I agree with this submission.
"5.For the avoidance of doubt, the Children and Family Court Advisory and Support Service (CAFCASS) has responsibilities in relation to a child in family proceedings in which their welfare is or may be in question (Criminal Justice and Court Services Act 2000, section 12). Since 1 April 2001 the Official Solicitor has not represented a child who is the subject of family proceedings (other than in very exceptional circumstances). In cases of doubt or difficulty, staff of the Official Solicitor's office will liaise with staff of CAFCASS Legal Services to avoid duplication and ensure the most suitable arrangements are made.'
At paragraph 12 of the Practice note of the Official Solicitor, the circumstances in which that office may consider it appropriate to act in family proceedings is set out,
'Children who require a litigation friend in proceedings
11. Non-subject child: a child who is not the subject of family proceedings may nevertheless be a party and subject to FPR 2010 rule 16.6 (see paragraph 7), requires a litigation friend in family proceedings. The most common examples are:
(a) a child who is also the parent of a child, and who is a respondent to a Children Act 1989 or Adoption and Children Act 2002 application;
(b) a child who wishes to make an application for a Children Act 1989 order naming another child (typically a child arrangements order for contact with a sibling);
(c) a child who has been joined as an intervenor in a public law children case to respond to allegations;
(d) a child intervenor in financial remedy proceedings;
(e) a child party to applications for declarations of status under Part III Family Law Act 1986 other than section 55A applications;
(f) a child applicant for, or respondent to, an application for an order under Part IV (Family Homes and Domestic Violence) or Part 4A (Forced Marriage) of the Family Law Act 1996;"
It was submitted that the terms of this note support the submission of Cafcass that its role in family proceedings is limited to the subject child.
i) the words 'or' do not appear after subsections (a), (b) or (c); and
ii) neither does the word 'and' appear after subsection (c).
It is in my judgment, however, significant that s.12(1) reads "it is a function of the Service to" followed by subsections (a) to (d). If the subsections had been intended by Parliament to be read disjunctively, I would have expected the word 'functions' to appear in s.12(1). The use of the word 'function' in the singular leads me to conclude that subsections of s.12(1) are not to be read disjunctively but instead are to be read conjunctively. Since one part of that function is to 'make provisions for the children to be represented in the proceedings', I am persuaded that the function and role of Cafcass pursuant to s.12 of the 2000 Act is limited to the subject child or children of the proceedings.
i) the appointment of the children's guardian in public law proceedings under Part IV of the 1989 Act ('specified proceedings' as defined by s.41(6)) and the assistance it may be required to give to a court are subject to rules of court (s.41(10) 1989 Act);
ii) the appointment of a children's guardian in public law proceedings is limited to a child who is the subject of the proceedings and is a party to the same (r.16.3 FPR);
iii) similar provision is made in respect of the appointment in private law proceedings (r.16.4 FPR);
iv) the FPR make separate provision for a child who is not the subject of the proceedings but is a party to the proceedings, namely the appointment of a litigation friend (r.16.5 FPR); and
v) the powers and duties of a children's guardian whether in public law or private law cases set out in rr.16.20 & 16.27 and paragraphs 6 & 7 of PD16A must be read in the context of and in the light of the requirements of rr.16.3 and 16.4 FPR, namely the appointment is made in respect of the subject child.