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Sir Nicholas Wall condemns decision to replace guardian

6 July 2011

Sir Nicholas Wall, president of the family division, has described as “quite shocking” the way the young parents of a toddler remained ignorant of a decision to replace the boy’s guardian.

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.

Giving judgment in A County Council v K and others [2011] EWHC 1672, Sir Nicholas also mounted a strong defence of the independent status of children’s guardians.

He said that where the two disagreed “it does not seem to me that the views of the manager should invariably prevail over those of the independent guardian”.

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 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.”

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.

Ann Haigh, chair of Nagalro, which represents children’s guardians, called on Cafcass to review its policies to take account of the judgment and ensure 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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Children Procedures Costs Courts & Judiciary