CAFCASS failures to appoint guardians do not breach children's rights

Failures by CAFCASS to appoint guardians for months at a time do not breach the human rights of children involved in care proceedings, the Court of Appeal has ruled.

The Official Solicitor brought a judicial review on behalf of children in four cases, where delays before guardians were appointed ranged from three to seven months. The cases were selected as typical, rather than being the worst examples.

Delivering the leading judgment in R (on the application of R,E,J and K) v the Child and Family Support Service [2012] EWCA Civ 853, Lord Justice McFarlane said CAFCASS argued in every case that a guardian was allocated “as soon as reasonably practicable”.

McFarlane LJ said it was hard to understate the “immense importance” of the role of the children’s guardian.

“A guardian who is appointed promptly at the start of the proceedings can conduct an initial investigation of the circumstances, offer a preliminary analysis of the issues and, crucially, assist the court in crafting the case management directions which will, to a large extent, determine the course and timetable of the litigation.”

McFarlane LJ went on: “The question raised in this appeal does not, however, concern the desirability of prompt or immediate appointment.

“The question for us is not one of desirability but one of statutory duty and it is whether CAFCASS has a statutory duty, owed to each individual child, to effect the prompt or immediate appointment of a children’s guardian in every such case.”

Counsel for the Official Solicitor based his arguments on Section 12 of the Criminal Justice and Court Services Act 2000, case law and human rights.

McFarlane LJ rejected the idea that there could have been a “legislative intention” that all or any of the duties created by Section 12 of the Act are owed to the individuals for whose benefit the functions are performed.

“On the face of it, these are general public law powers and duties,” he said.

The lord justice said the case law in Re MH and R v Cafcass established and supported a general duty.

On human rights, McFarlane LJ said that it might be possible in “one or more individual cases” for the courts to conclude that there had been a breach of Article 6 (right to a fair hearing) and Article 8 (right to private life) where guardians had not been appointed in a timely manner.

However he said to rule that “of itself” a failure to appoint a guardian immediately amounted to breach of Convention rights would involve assuming that the judge, the other parties and in particular, the child’s solicitor would have “failed to act in a manner which, to some degree, accommodated the lack of guardian and protected the child’s rights”.

In particular, Lord Justice McFarlane said it “must involve the assumption that it will be beyond the capacity of the trial judge to ensure a fair trial in the absence of a guardian for any stages of the proceedings”.

He added: “The issues involved in public child care proceedings are often of the utmost importance to the parents, to the state and above all to the subject child.

“No one involved in these cases should be under any misapprehension that rights under ECHR Arts 6(1) and 8 will be ‘engaged’ at every stage of the process.

“There is a duty upon public bodies, of which CAFCASS, the local authority and the court are three, to act at all times in a manner which is compatible with the convention.”

McFarlane LJ dismissed the appeal. The Lord Chief Justice, Lord Judge, and Lord Justice Richards agreed.