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Let courts decide, Sir Nicholas Wall says

Clashes between guardians and Cafcass must be aired openly

11 July 2011

Sir Nicholas Wall, president of the family division, has said that courts must decide on disagreements between children’s guardians and Cafcass over the future of vulnerable children.

Ruling in a case where the parents of a toddler remained ignorant of a decision to replace the boy’s guardian, he said: “I yield to nobody in my view that the guardian’s independence needs to be cherished. At the same time, Cafcass has to manage, and to ‘quality assure’.

“Can the circle be squared? I believe it can, and the means of doing it lies with the court.”

He said the proper course in the event of an “irreconcilable difference of view” was for Cafcass to apply to the court to intervene in the case, and “for there to be placed transparently before the court the views of the guardian and the views of the manager, each explaining why the other is not to be preferred”.

Sir Nicholas went on: “As I have already indicated there is nothing either wrong or humiliating about such a course of action. The court will then decide. It may decide to replace the guardian: it may not. But the decision will be that of the court – as it should always be.”

Giving judgment in A County Council v K and others [2011] EWHC 1672, Sir Nicholas said that, despite the confidentiality of family proceedings, and the fact the hearings take place in private, “the watchword of family justice is ‘openness’” and each party to proceedings should know what is going on.

Sir Nicholas said that while he saw the force of the argument that Cafcass must assure quality, it did not follow that the independent views of the guardian should “invariably and inevitably be subservient”.

He went on: “In the instant case, it does not seem to me that Cafcass obeyed its own rules. It was not for Cafcass to replace the guardian: it was not for Cafcass to substitute its views for those of the guardian.

“The guardian may have been right – she may have been wrong. It does not seem to me – although I have not, quite deliberately, made findings of fact – that Cafcass followed a transparent procedure. Added to which, of course, it was complicit in the failure to notify the parents of what was going on.”

The case involved an application by East Sussex County Council for an interim care order relating to a toddler, known as TL.

The boy’s parents and his guardian opposed the council’s plan to transfer him to foster parents. The guardian was later removed, without the parents being involved in the process. Anthony Douglas, chief executive of Cafcass, described the case as a “one off” and said its managers worked on over 12,000 public law cases at any one time.

“There are however times when the rationale for a report needs to be challenged. We did not do that properly in this case, and we accept the judgment.

“If there is an irreconcilable difference between managerial and practitioner opinion in future, we will do as the president says, and put both views before a court. If we do get to this stage, it will only be on very exceedingly rare occasions in future.”

Nagalro, which represents children’s guardians, joined Cafcass in intervening in the case. Ann Haigh, chair of Nagalro, called on Cafcass to review its policies and make sure that managers “fully understand the importance of the professional independence of the children’s guardian role and their proper relationship with the court”.

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Legal Aid Children