R & Ors (Minors), R (on the application of) v The Child and Family Court Advisory and Support Service

This is an appeal against the decision of the Divisional Court [Munby LJ and Thirlwall J] on 12^th July 2011 dismissing a claim for judicial review brought on behalf of four children against the Child and Family Court Advisory and Support Service (“CAFCASS”). Judicial review had been sought on the basis that failure to appoint a children’s guardian in a timely manner, or in one of the cases at all, in care proceedings under the Children Act 1989 constituted a breach by CAFCASS of statutory duty and/or a breach of the European Convention on Human Rights (ECHR) rights of the respective children.

The Divisional Court accepted that CAFCASS was under a statutory duty in general terms to provide a scheme for the representation of children in care proceedings in England, but concluded that that duty did not extend to a specific obligation to ensure that a particular child in an individual case is represented.

The essential facts of each of the four cases are uncontroversial as between these parties and were summarised as follows in the judgment below:

“The facts of the four cases

The need for a court making decisions about whether or not a child requires the protection of a care order to have advice from a social worker who is independent of the applicant local authority was given prominence in the report into the death of Maria Colwell in l974 and was reemphasised in subsequent reports into the deaths of Jasmine Beckford (1985), Heidi Koseda (1986) and Kimberley Carlile (1987). Whilst statute law was slow to deliver a requirement for the appointment of an independent social worker to represent the interests of a child in statutory care proceedings under the Children and Young Persons Act 1969, many of the more complicated child care cases were in fact brought before the court outside the statutory scheme by using wardship proceedings and it was the norm in wardship cases for the child to be represented by a guardian ad litem, often the Official Solicitor, who could instruct an independent social worker to advise the court and would provide legal representation to advocate the recommendations of that advice before the court.

The Children Act l989 [CA 1989], which came into force on 14^th October 1991, expanded the statutory scheme so that it now encompasses all cases where local authorities seek to take a child into care on the basis that the child is suffering, or is likely to suffer significant harm. In consequence of CA 1989, s 100, wardship is no longer available for this purpose. The 1989 Act, drawing upon the recommendations from the past enquiries into child death and the favourable experience of the wardship court, established a statutory requirement for the appointment of a guardian ad litem and a solicitor for the child in every child care case unless the court is satisfied that it is not necessary to do so in order to safeguard the child’s interests (CA 1989 s 41 (1)). It is very rare for the court in care proceedings to dispense with the appointment of a solicitor and guardian and this “tandem model” of these two different professionals both acting to represent the interests of the individual child in a care case has been the norm for the past twenty years.

The original title given to the independent social work role, “guardian ad litem”, was changed in 2001 to “children’s guardian” by the Criminal Justice and Court Services Act 2000, s 74, and the relevant court rules.

The availability of the tandem model in child care proceedings has been under focus in the recent review of the Family Justice System carried out for the government by a panel chaired by Mr David Norgrove. In its interim report (March 2011) at paragraph 4.243 onward the Norgrove panel reported as follows:

“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.”

In its final report (November 2011) the panel reported respondents expressing “strong support for the tandem model”. The panel recommended to the government that the tandem model should be retained, but that the pressure of high caseloads and limited resources should be reflected in a proportionate deployment of the solicitor and children’s guardian either working together or individually as the needs of a particular case require.

In its formal response to the Norgrove Review (February 2012) the government accepted the recommendation that the tandem model should be retained with resources carefully prioritised and allocated. The response states (page 63):

“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.”

Following that brief description of the history, role and value of a children’s guardian in care proceedings, it is now necessary to turn to the relevant statutory provisions.

Care proceedings are governed by the general provisions in CA 1989, Part I (ss 1–7) and those relating to ‘care and supervision’ in Part IV (ss 31-42). The following provisions are directly relevant to the issues in this case.

By CA 1989, s 1(1)(a) when a court determines any question with respect to the upbringing of a child, the child’s welfare must be the court’s paramount consideration. CA 1989, s 1(2) provides that:

“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.”

Section 32(1) provides that the court:

“shall … –

(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.”

CA 1989, s 41 establishes a duty on the court to appoint ‘an officer of the Service’ (in England a CAFCASS officer, or in Wales an officer of CAFCASS Cymru) to act a children’s guardian in ‘specified proceedings’, which definition includes care proceedings:

“(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.

(3)

Where –

(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; …”

CA 1989, s 42 gives extensive powers to the children’s guardian to investigate relevant local authority records. In addition the rules of court establish further powers and duties attaching to the appointed children’s guardian in order for the officer to be able to discharge their primary duties of acting for the child in the proceedings and safeguarding the child’s interests.

At the time of the appellant children’s cases, the relevant rules were, for proceedings in the High Court or the County Court, the Family Proceedings Rules 1991, SI 1991/1247 (FPR 1991), and for proceedings in the Family Proceedings Court, the Family Proceedings Courts (Children Act 1989) Rules 1991, SI 1991/1395 (FPC(CA 1989)R 1991). With effect from 6 April 2011 these two sets of rules were replaced by a single set of rules, applying to proceedings in all three courts, The Family Procedure Rules 2010, SI 2010/2955 (FPR 2010).

The two sets of 1991 rules were, on this topic, effectively identical. As the 2010 rules make only a number of minor changes (and one of substance), the Divisional Court adopted the sensible course of making reference to the current rules, FPR 2010, drawing attention where necessary to any material changes.

FPR 2010 rule 12.6 (FPR 1991 rule 4.10(1), FPCR 1991 rule 10(1)), so far as material, provides as follows:

“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,

proceedings –

(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.

The powers and duties of the guardian are set out in FPR 2010 rule 16.20 and Practice Direction 16A (FPR 1991 rules 4.11 and 4.11A, FPCR 1991 rules 11 and 11A). Rule 16.20 so far as material, provides as follows:

“(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.”

Practice Direction 16A, so far as material, provides as follows in Part 3:

“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.”

In contrast to paragraph 6.8(a) of the Practice Direction, the previous provision in FPR 1991 rule 4.11A(7) (FPC(CA 1989)R rule 11A(6)) required the filing of a report “unless the court otherwise directs, not less than 14 days before the date fixed for the final hearing.” It is also to be noted that paragraph 6.5 of the Practice Direction no longer requires the children’s guardian to attend directions hearings if the children’s solicitor attends; previously (FPR 1991 rule 4.11A(4), FPC(CA 1989)R rule 11A(3)) the children’s guardian was required to attend all directions appointments unless excused by the court.

The final piece of the structural jigsaw is to note that, since April 2008, practice in care proceedings has been regulated by the Public Law Outline (PLO) which is now to be found in FPR 2010 as Practice Direction 12A: Public Law Proceedings Guide to Case Management. The PLO specifies that the allocation of a children’s guardian is “expected” by Day 3 and anticipates that at the First Appointment, by Day 6, the court will (paragraph 13.3(4)) “request the children’s guardian or if appropriate another officer of the service … to prepare a Case Analysis and Recommendations for the Case Management Conference or Issues Resolution Hearing”; the CMC is required to be no later than Day 45 and the Issues Resolution Hearing (“IRH”) is to be between weeks 16 and 25 (counted from the issue of proceedings).

In surveying the statutory context under the CA 1989, the Divisional Court made the following observations at paragraph 38. The parties before us effectively endorse these observations and we have accepted them as being an appropriate and highly relevant summary of the importance of the issues raised in this appeal:

“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.”

Before this court, neither party has sought to argue that the description of the children’s guardian as ‘pivotal to the whole system’ was in any manner over-stated. CAFCASS accept that ideally it is in the interest of a child who is the subject of care proceedings, just as it is in the interests of the parties and the court, for a guardian to be appointed in a timely manner and, if possible, in accordance with the timetable outlined in the PLO. The question raised by this application is whether CAFCASS are under an administrative public law duty to make such timely appointments.

CAFCASS was established by Chapter II of Part I of the Criminal Justice and Court Services Act 2000, section 11(1) of which provides that CAFCASS is “to exercise the functions conferred on it by virtue of this Act and any other enactment”.

CJCSA 2000, s 12, entitled “Principal functions of the Service”, provides, so far as material, as follows:

“(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) [2001] 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.

CJCSA 2000, s 78 provides that in that Act the definition of “functions” ‘includes powers and duties’.

Paragraph 9(1) of Schedule 2 to the 2000 Act provides that:

“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 only occasion upon which the construction of these provisions has previously been considered in detail is to be found in the decision of Charles J in R v Children and Family Court Advisory and Support Service [2003] EWHC 235 (Admin); [2003] 1 FLR 953 which established that the duty under CJCSA 2000, s 12 upon CAFCASS is not to appoint a guardian immediately, but ‘as soon practicable’. Charles J’s decision is plainly of importance when considering the issues in this case and was fully described in the judgment of the Divisional Court at paragraphs 43 to 53; it is not therefore necessary to repeat that exercise in detail here.

In common with the present proceedings, the claimants before Charles J sought to establish a legal obligation on CAFCASS to make one of its officers available for appointment as a guardian ‘immediately or forthwith’ in any case. In short terms, and in no manner to do justice to Charles J’s careful analysis, the following are the key points in R v CAFCASS:

The analysis given by Charles J in R v CAFCASS was not contested before the Divisional Court by either side and was accepted both in principle and in detail (paragraph 46) in its judgment. Before this court, which is of course not bound by the decision, Mr Geekie seeks to deploy his HRA 1998 and ECHR arguments (which were not raised before Charles J and to which I will turn in due course) to persuade us that it is both necessary and possible to interpret s 12(2) so as to import the words ‘immediately’ in relation to the appointment of a children’s guardian.

Before the Divisional Court the claimants accepted that that court was bound by the decision of Charles J in R v CAFCASS. It was submitted that the duty to appoint was that of the court and the duty on CAFCASS was to comply with the court’s order either forthwith or within the timescales set by the court. If there was to be any leeway, then that was to be determined by the court and not administratively by CAFCASS.

A full summary of the claimants’ case is set out at paragraphs 54 to 62 and at paragraphs 72 to 81 of the judgment below. It was submitted that delay will be unlawful if the absence of a guardian becomes incompatible with the statutory scheme, and, secondly, that delay will be unlawful if it results in a breach of either the child’s or anyone else’s human rights. The human rights argument, which was grounded upon ECHR, Arts 6 and 8 together with Article 12.2 of the United Convention on the Rights of the Child (‘UNCRC’), asserted that many of the basic safeguards established by those provisions become meaningless or lacking in effect if there is no timely appointment of a guardian.

In relation to each of these four cases, it was submitted that the delay in appointing a guardian was, as a matter of law, far too long. Whilst the moment at which delay becomes impermissible will vary from case to case, the window for appointment was said to be narrow and the time ‘not long’ before a failure to appoint becomes unlawful.

In replying to the submissions of CAFCASS, the claimants submitted that s 12(2) of the 2000 Act must relate to making guardians available for appointment, thus enabling the functions of CAFCASS and of individual guardians to be performed as required by the statutory scheme. Further, it was claimed that, even if no duty were owed to an individual child, CAFCASS must nevertheless perform its duties lawfully and in accordance with the ordinary principles of public law, that is, rationally, timeously and in a way which does not defeat the purpose of those functions.

The Divisional Court largely agreed with the general thrust of the submissions in reply made on behalf of CAFCASS and it is not necessary to set those arguments out here. In discussing the issues (paragraphs 87 to 98), the Court concluded that:

The core conclusion of the Divisional Court is set out at paragraphs 91 and 92 of the judgment:

The Divisional Court concluded accordingly that the claims for judicial review failed and must be dismissed. It is against that outcome that the claimants now appeal to this court.

The Appellants’ grounds of appeal seek to challenge the conclusion that CAFCASS is not under a duty to individual children ‘to do anything in any particular case within any particular timescale’ (Divisional Court paragraph 92). The grounds argue that this conclusion creates a highly unsatisfactory situation which deprives the duties which the court had found to exist of any real substance.

The grounds of appeal further assert that the Divisional Court was wrong to reject the appellants’ ECHR arguments. The Appellants’ case is not to claim incompatibility between the 2000 Act and the Convention, rather their case is that HRA 1998, s 3 requires CJCSA 2000, s 12 to be read and given effect in a way which is compatible with Convention rights.

The key points raised in the skeleton argument of counsel for the Appellants are:

Before this court the Appellants seek to challenge the decision of Charles J in R v CAFCASS if, and to the extent that, Charles J suggested that resources could be a decisive factor in determining when a guardian is appointed.

In addition, Mr Geekie’s written submissions give increased prominence to the judgment of Wall J in MH (A Child) and Re SB and MB (Children) than was the case before the lower court.

In the course of his skeleton argument in reply, Mr Roger McCarthy QC for CAFCASS submits that the Appellants’ case on appeal raises a number of new arguments which were simply not deployed before the Divisional Court. He invited this court to refuse permission for the Appellants to develop these arguments on appeal. Whilst understanding Mr McCarthy’s submissions on this point, we have taken the view that there is a need to undertake a comprehensive evaluation of the issues raised by a failure to appoint children’s guardians promptly and we have therefore not restricted Mr Geekie in the presentation of the arguments that he wished to raise before us.

Orally Mr Geekie developed his submissions by stressing that care proceedings are all about the individual child before the court and that the importance of timing is central to the entire scheme to the extent that it is referred to throughout the relevant materials. Although much of the relevant material relied upon in this context is contained in Statutory Instrument or guidance, major parts of which have been introduced after the passing of the 2000 Act, Mr Geekie submits that this material is nevertheless relevant to the construction of the statute as identifying the general context which was already established prior to 2000.

Mr Geekie points to FPR 2010, r 12.3 which provides that the subject child is automatically a party to care proceedings under CA 1989, s 31. The importance for a party before the court to have representation, particularly if that party is, by reason of age, under a disability, is stressed and the submission is made that there is no power in the statutory scheme for the proceedings to continue, with important decisions being made, without the child being adequately represented.

Mr Geekie, on questioning from the court, accepted that CJCSA 2000, s 12 must establish a separate duty upon CAFCASS owed to the court, in addition to any duty owed to a child, but he argues that such a duty would only be a general duty and does not equate to the duty owed to an individual child for which he argues here.

The Appellants’ submission that the procedural requirements of ECHR Arts 6 and 8 require the appointment of a children’s guardian in a timely manner in every case, led to a question from the court as to whether that was an obligation that applied to every Convention state. Mr Geekie’s response was that once Parliament has determined that the statutory scheme around CA 1989, s 41 providing for the tandem model of representation is the mode for meeting the Convention rights in England and Wales, then, irrespective of the arrangements in other jurisdictions, it is the efficacy of that particular model to provide effective and timely delivery of those rights that requires evaluation.

The Appellant’s ECHR argument in this court is based, in part, on Art 12(2) of the UNCRC which provides:

“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 [2003] 1 FLR 484).

Relying on Airey v Ireland (1979) EHRR 305, the Appellants submit that the Convention is intended to guarantee rights which are not merely theoretical or illusory, but rights which are practical and effective. Reference is also made to P, C and S v United Kingdom (2002) 35 EHRR 1075 where the ECtHR concluded that for parents to proceed through a complicated contested hearing without representation prevented them from having fair and effective access to the court as is required by ECHR, Art 6(1). That conclusion applied without the parents being required to show actual prejudice from the lack of representation.

In so far as Mr Geekie submits that the conclusion of the Divisional Court is incompatible with the Convention, he argues that that state of affairs is not cured by the existence of a power in the 2000 Act for the Lord Chancellor to make directions (under CJCSA 2000, Sch 2, paragraph 9) as, in common with many Acts which contain similar powers, the mere existence of that power does not contribute to the construction of the primary section.

Mr Geekie gives greater prominence in his submissions to this court to the decision of Wall J in Re MH (A Child) and Re SB and MB (Children) [2001] 2 FLR 1334 than was the case before the lower court. It is therefore helpful to look at that case in detail at this stage.

The point at issue in Re MH was whether a children’s guardian had any continuing role in a case where the court proceedings had concluded but the court had made a supervision order under CA 1989, s 31. Previously it had been established that the guardian’s role ended with the conclusion of the court case and therefore the role ended, in effect, upon the making of the supervision order. Section 12(5)(b) of the CJCSA 2000 (set about above) made express provision for ‘family proceedings’ in which a supervision order has been made to be treated as continuing until the supervision order has ceased to have effect. Wall J held that the effect of s 12(5) was that the guardian’s appointment continued during the life of a supervision order.

The narrow point which was at the focus of Re MH is not relevant to the issue before us. That factor and the fact that s 12(5)(b) was repealed (Adoption and Children Act 2002, s 139 and Sch 3 para 118) with effect from November 2003 mean that the decision in Re MH has no direct relevance to this appeal. The importance of the decision to Mr Geekie’s submissions lies in the general approach taken by Wall J to the interpretation of s 12. He submits that:

Mr Geekie acknowledges that the inability to pinpoint a time, set by statute, at which the breach of any duty becomes unlawful, is a difficulty but he nevertheless argues that a plain reading of the statute and an acceptance that the duty expressed there will not, in the real world, become unlawful during the first hour after a court has made an order appointing a guardian, does not mean that unlawfulness can never arise thereafter.

Towards the conclusion of his submissions, Mr Geekie’s attention was focussed by the court on the first sentence of paragraph 92 of the judgment of the Divisional Court, that “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”. He accepted that unless he succeeded in establishing that s.12 imposes a duty owed to the individual child in a particular case the appeal could not succeed.

In short, the submissions made by Mr Roger McCarthy QC acting for CAFCASS are to uphold the decision of the Divisional Court and oppose the appeal. In doing so he has had to deploy fresh argument against the points now made by the appellants which are either new or at variance with the case that was being argued below.

In addition, by its Respondent’s Notice, CAFCASS seeks to support the conclusion of the Divisional Court by arguing that the lower court’s construction of s 12(1)(c) was too narrow and that of s 12(2) too broad; both sub-sections should have been read in the context of s 12 as whole. If read as a whole, it is submitted that the general (as opposed to individual) nature of the duties is even clearer.

Before this court, as it has previously done, CAFCASS readily conceded the importance of the role of the children’s guardian in care cases and that the early appointment of a guardian is important. In its evidence and in its defence CAFCASS has made clear that what occurred in the cases of the four Appellants was ‘undesirable’.

CAFCASS has always accepted that CJCSA 2000, s 12 generates public law duties which may be enforced by a person of appropriate standing. Its primary submission is that the functions in s 12(2), which are headed by the word ‘must’, are indeed duties but they are, as the lower court found, general or target duties and not specific duties owed to individual children.

In relation to the ECHR points raised by the Appellants, and in addition to the conclusions of the Divisional Court, CAFCASS argues that it is an error to look to one aspect of a set of proceedings in isolation when considering whether or not there has been a breach of Art 6(1). The proceedings in question must be looked at as a whole. Mr McCarthy submits that all the Appellant’s arguments under the ECHR amount to is a conclusion that in these cases Arts 6(1) and 8 are ‘engaged’, which they most plainly are; the arguments do not, however, get near to establishing that either of these articles has been breached.

In his oral submissions, Mr McCarthy was clear and precise in arguing that, for the Appellant’s to succeed in establishing an individual duty, they had to establish that the duty to appoint arose immediately upon the court making the order directing CAFCASS to appoint an officer. Phrases such as ‘eventually’ or ‘too long’ are not, it is submitted, in point; either there is an immediate duty to appoint or there is not. The answer to that question was, of course, given at first instance by Charles J in R v CAFCASS and Mr McCarthy invites us to endorse Charles J’s analysis.

Mr McCarthy submitted that the Appellant’s arguments were contradictory in the sense that a claim that there was an ‘immediate’ duty to appoint a guardian rendered redundant the argument that there could also be a breach of Articles 6 and/or 8.

It is submitted that the family court’s order directing CAFCASS to appoint an officer, whilst being a ‘public law’ order in the context of ‘public law family proceedings’, is not a ‘public law’ order in the sense of being an order that could be enforced directly in the Administrative Court. It is not therefore an order that the family court could directly enforce against CAFCASS. Mr McCarthy accepted that if the family court found that there had indeed, in a particular case, been a breach of the ECHR under the HRA 1998, then the judge would have jurisdiction to make an injunctive order against CAFCASS, but that was not the situation in any of these four cases.

In responding to Mr McCarthy’s submissions, Mr Geekie clarified the Appellants’ case under Article 6 by saying that any failure to establish an immediate duty to appoint is not fatal to establishing a breach of the article; if the case proceeds then at a later stage a breach of Articles 6 and/or 8 may arise. Mr Geekie also confirmed that, in so far as he was submitting that the 2000 Act was incompatible with the ECHR under HRA 1998, s 3 all that was needed in terms of construction of s 12, or its interpretation, was the insertion of the word ‘immediate’.

I need absolutely no persuasion as to the essential merits of the complaint that lies behind the claims of each of the four children before this court or of the plea that is now made so forcefully and eloquently on their behalf. Whether one uses the words of the Inquiries that argued for the introduction of the guardian’s role, or the words of the Family Justice Review and the government’s response to it, or those of Charles J and the Divisional Court, the immense importance of the role of a children’s guardian both to the operation of the statutory scheme for protecting children from significant harm and to the quality of outcome for the individual child in each such case is hard to understate. Without, I hope, stretching the metaphor beyond its tolerance: in the tandem model it is the children’s guardian, rather than the child’s solicitor, who steers the course for the child’s representation in the proceedings. 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.

The great value to the child, the other parties and to the court of appointing a children’s guardian very promptly after the start of proceedings under CA 1989 Part IV has been readily accepted by both sides in this appeal and has, since April 2008, been a key expectation of the PLO (and now the FPR 2010, PD12A). Although CAFCASS has, understandably, carefully chosen the word ‘undesirable’ to describe the delay in appointment in the four appellants’ cases, Mr McCarthy has not in any manner sought to justify what occurred in positive terms. All are effectively agreed that the optimal outcome is for a children’s guardian to be appointed promptly in every public law child case. The points made about the importance of representation to any party, particularly one under a disability, are well made. 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.

Despite the real sympathy that I have for the plea that lies behind the Appellant’s case, it is necessary to apply a legal, public law, analysis to the arguments raised and to the wording of the key statutory provisions. In doing so, where a choice of statutory construction arises, and a purposive interpretation is called for, I am plain that any purposive construction must point to the early or immediate appointment of a guardian.

In approaching the task of construction, the following are, in my view, the essential points in the case as it is now presented to this court. Having already introduced them, it is only necessary now to list them in headline form, before turning to address them in turn:

In looking at these various factors, I take as the focus of the entire case the first sentence of paragraph 92 of the judgment below: ‘… 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’. As Mr Geekie conceded, unless it is possible to depart from that conclusion, and hold that this is an ‘individual’ rather than a ‘target’ duty, the appeal cannot succeed.

The context in which CJCSA 2000, s 12 is to be construed is a necessarily narrow one which is confined by the detailed wording of the statutory provisions themselves, the structure and wording of the statute as a whole and, importantly, the date of the statute.

Much of the material before this court which establishes the merits of the wider plea made by the appellants is irrelevant to the task of construing the two key subsections in s 12. The PLO is the prime example of a detailed ‘expectation’ in a Practice Direction which was promulgated in 2008 but which, it is submitted, should inform our interpretation of Parliament’s intention some eight years earlier. Mr Geekie’s submission that the PLO simply clarifies and more precisely defines the context in which, in 2000, the provision was passed cannot be sustained. The context within which public law children cases are determined is constantly changing as a result of many various stimuli including subsequent legislation, government guidance, rule changes and practice directions but, most of all, the context has changed as a result of the increase in the court’s caseload and the consequent rise in delays across the system. These changes, in turn, give rise to initiatives designed to meet the developing situation; the PLO, the Family Justice Review and now the proposed Family Justice Bill are prominent examples. In terms of statutory interpretation, it cannot be permissible to take account of any of these subsequent developments as being relevant to the task of interpreting Parliament’s intention in passing the 2000 Act. To do so would be to contemplate any statutory provision changing in its meaning as the ‘context’ in which it operated became more clearly defined, or even changed, as time marches on. Our task must be to concentrate on the wording of s 12 within its own compass and the compass of the 2000 Act as a whole, without regard to any subsequent developments.

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.

The inability of the appellants to define a moment in time at which the individual duty for which they argue will bite is right at the centre of this case. Mr Geekie was unable to do more than offer approximate descriptions such as ‘not long’ or ‘too long’. He submitted that the facts of the four individual cases are so egregious that they speak for themselves as being beyond any acceptable timeline. In those terms, the duty for which he argues is one that will vary with the facts of each case, but will be obvious in the breach on the basis that ‘you will know it when you see it’ (my words).

In paragraph 92 of its judgment, the Divisional Court described its inability to accept this element of the claimants’ case:

“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.”

Having experienced Mr Geekie’s understandable, but nonetheless exquisite, difficulties before this court in relation to this key part of his case, it was not surprising that, as his submissions developed, he seemed to move away from the imprecise ground and to push for a finite timescale whereby CAFCASS is said to be under a duty to appoint a children’s guardian ‘immediately’ upon being directed to do so by the court.

In terms of an individual statutory duty, a requirement that will vary from case to case and will only be capable of evaluation in terms of breach after the event is not a tenable proposition. For the reasons given in paragraph 92 of the judgment under appeal, that part of the appellants’ case must be rejected. In consequence the appeal can only succeed if an individual duty of ‘immediate’ appointment exists.

At paragraph 52 I have summarised the points that Mr Geekie seeks to make in reliance upon the decision of Wall J in Re MH. Although the point at the centre of that case (the continuing appointment of a guardian during the currency of a supervision order) is neither relevant to this appeal nor, in fact, any longer the law, I readily accept that the general approach taken by Wall J is of assistance in our present task. Taking my summary of Mr Geekie’s points in turn, I would observe as follows:

In the circumstances I accept each of the points made in relation to Re MH. These points, however, are also, either expressly or by implication, well established by the judgment of Charles J in R v CAFCASS and by the Divisional Court in the present case. They go to establish and support a general duty, but do not go on to make out a duty owed to each individual child, let alone one that is owed, and actionable, ‘immediately’ upon a trigger direction from the court. However, insofar as Mr Geekie refers to Re MH as a general description of the approach to statutory interpretation in this case, I accept that guidance.

It is not possible for the Appellants to derive more support than this modest level of general guidance from Re MH. Wall J was faced with interpreting a narrow point and the duty, which he ultimately found to exist, was one supported by the express words of CJCSA 2000, s 12(5)(b):

“(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 appellants’ submissions in this court seek to marginalise the relevance of Charles J’s judgment in R v CAFCASS. In the skeleton argument on appeal it is submitted that Charles J was presented with an all or nothing argument aimed at establishing ‘immediate or forthwith’ appointment and the judge was not therefore required to look at a more subtle case based on ECHR arguments and a bespoke timetable applicable to individual cases as is the primary argument here.

Despite the wording of the skeleton argument, by the close of his oral submissions Mr Geekie had been forced to argue for an ‘immediate’ timeframe and he was thereby required to assert that the decision of Charles J was wrong in its central conclusion.

For my part, and looking at the judgment within its own terms (which is without consideration of any separate ECHR elements), I consider that R v CAFCASS was correctly decided for the reasons given so clearly by Charles J, which were in terms expressly endorsed by Munby LJ and Thirlwall J. Drawing together the observations that I have made thus far, and willingly embracing the need for a purposive construction of these provisions, it is just not possible to read into s 12(1)(c) and s 12(2), read together, anything more than the general or target duty found below. Thus, unless the human rights arguments deployed by Mr Geekie alter the situation, the appeal must fail.

The human rights argument deployed on behalf of the Appellants has changed and developed during the course of the hearing before the Divisional Court and, again, in the process before this court. The final resting point is a submission that:

I mean no disrespect to Mr Geekie by describing these as brave submissions. They are not submissions that were put forward by the claimants in R v CAFCASS, despite those claimants seeking precisely the same outcome (‘immediate’) for which these appellants now argue. They were not the human rights submissions deployed before the Divisional Court or placed before us in skeleton arguments and Mr McCarthy is justified in drawing our attention to the manner in which the Appellant’s case has moved during the proceedings.

The Appellants’ human rights case, as it is now cast, is not supported by authority. The cases previously relied upon relate to the case for a breach of rights that would occur with the passage of time or could be identified after the event (P, C and S v UK) or are in general terms (Airey v Ireland).

ECHR, Art 6(1) confers a right to a fair hearing within a reasonable time by an independent and impartial tribunal. The right includes a right to participate effectively in the proceedings and to have fair and effective access to the court. It was conceded on behalf of the appellants, and is well established by the case law (see e.g. Edwards v United Kingdom (1992) 15 EHRR 417 paras 31-39), that the evaluation of fairness involves looking at the proceedings as a whole, rather than piecemeal. Other than a blanket policy which, for example, refused to permit a party to proceedings any form of representation, it is difficult to conceive of circumstances where a breach of Art 6, or the procedural requirements of Art 8, could be established ‘immediately’ at the very start of the proceedings.

It may well be that in one or more individual cases where there has been failure by CAFCASS to appoint a children’s guardian in a timely manner, or at all, it will be possible to conclude that there has been a breach of the Art 6 and/or Art 8 rights of the individual child before the court. Such a conclusion would, in my view, only be achievable after the completion of the trial process and after it had been evaluated as a whole so as to determine whether or not a violation of these Convention rights had taken place. We are not invited in respect of the four cases before the court to conclude that in any one of them there was an actual breach of Convention rights. It is of note that in none of the four cases did the trial court hold (or was, I suspect, invited to hold) that a breach of Arts 6 or 8 had occurred.

To hold that, of itself, a failure to appoint a children’s guardian immediately upon being directed to do so amounts to a breach of Convention rights, would involve assuming that the judge, the other parties and, in particular, the solicitor for the child (who, we understand, is likely to have been appointed promptly) would have failed to act in a manner which, to some degree, accommodated the lack of guardian and protected the child’s rights. In proceedings under CA 1989, Part 4, the family court itself has a primary duty under the HRA 1998 to conduct its process in a manner which is compatible with the Convention. To hold, as Mr Geekie asks us to do, that a failure to appoint a guardian immediately is sufficient to establish that the proceedings as a whole are bound to be conducted in breach of Art 6 or 8 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.

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 (HRA 1998, s 6(1)). It is against that background that CAFCASS readily accepts the duty that Charles J found lay within s 12 of the 2000 Act to appoint a children’s guardian as soon as practicable after the request is made. Although not expressly argued before him, the ECHR arguments that we have heard support the conclusion to which Charles J arrived, just as they support the conclusion of the court below in the present case. It is, however, just not possible to hold that the Appellants’ human rights arguments support the conclusion for which Mr Geekie now argues which would involve holding that in every case a failure to appoint a guardian immediately upon request would inevitably amount to a breach of Convention rights. HRA 1998, s 3 will only give this court jurisdiction to read text into a provision where the provision is not otherwise compatible with the Convention rights. Nothing short of a finding on the level I have described would make it permissible for this court to ‘read in’ to s 12 of the 2000 Act a requirement for immediate appointment which, as Charles J has held, is not otherwise present.

Even if, contrary to the foregoing, the effect of Arts. 6 and 8 were to require the immediate appointment of a guardian in every case, it would not justify the court adopting, pursuant to HRA 1998 s.3, a different interpretation of s.12 from that which otherwise be adopted in accordance with the normal principles of statutory construction under domestic law. That is because the CJCSA 2000 contains its own mechanism for the laying down of any appropriate time limits, by means of directions under paragraph 9 of schedule 2, and any requirement as to immediate appointment of a guardian could be imposed by such directions. Compatibility with the Convention could therefore be achieved within the terms of the Act without any need to adopt a different interpretation of s.12 in order to produce such a result. The fact that the statutory mechanism would call for action by the Lord Chancellor in making the relevant directions would not be a good reason for the court to adopt a different interpretation of s.12.

Despite fully acknowledging the very real importance of achieving the appointment of a children’s guardian for a child who is the subject of care proceedings at an early stage in every case, I am entirely satisfied that the decisions of Charles J in R v CAFCASS and of the Divisional Court in the present case are sound and correctly describe the duty upon CAFCASS under CJCSA 2000, s 12.

I would therefore dismiss this appeal.

I agree.

While sharing the evident concerns of McFarlane LJ, there seems to be no answer to the reasons given by him, and by the Divisional Court, for dismissing these claims for judicial review.