A County Council v K & Ors (By the Child's Guardian Ht)

I would like to begin this judgment with an apology to the parties and to the profession for the length of time it has taken me to produce it. This has in part been due to the pressure of other work, but mostly because I have found the issues left to me difficult. Part of the difficulty has been the fact that, in my judgment, some of the issues (which I will identify later) are simply not justiciable. This is a judgment, not a paper or a lecture. There are, however, areas of the case; (a) which I think are properly justiciable; and (b) in which I can properly offer guidance. Where I have concluded that I simply cannot adjudicate on a particular matter, I propose to say so.

What I proposed to do is; (1) to outline the facts which give rise to the case reaching my court; (2) to set out in some detail the arguments presented to me; (3) to identify the issues which I do not think are justiciable; (4) to explain why I have not resolved issues of fact and have dealt with the case purely on submissions; and (5) to discuss those issues which are properly justiciable and on which I can reach proper conclusions. The result is a judgment of greater length than I had originally intended. The issues are, however, important, and require full ventilation.

The one point in the case about which everyone is agreed is that what actually occurred should not have happened. So I propose, first of all, to set out the relevant facts which have resulted in a discrete aspect of this case reaching my court.

On 1 September 2010, the East Sussex County Council (the local authority) issued care proceedings under Part IV of the Children Act 1989 (the Act) relating to a male infant, whom I will identify only as TL, and who was born on 1 January 2009.

On 8 September 2010, the local authority’s application for an interim care order (ICO) in relation to TL came before the Hastings Family Proceedings Court (the FPC). The local authority’s care plan under the proposed ICO was for TL to be separated from his parents and placed in foster care whilst his parents’ capacity to care for him was assessed.

As the care proceedings are currently continuing in the Brighton County court before Her Honour Judge Norrie, I propose to say nothing about the merits of the case, or the local authority’s reasons for instituting proceedings and for seeking an ICO save that TL’s parents (rightly, in my view) accepted that the threshold criteria for an ICO under section 38 of the Act were met. I need also to record that TL’s parents are currently aged respectively 20 (his mother) and 23 (his father); that they are not married and have no other children: TL’s father, however, has parental responsibility for him, having been named on TL’s birth certificate. TL was represented at the hearing in the FPC on 8 September by a solicitor and his guardian (whom, henceforth. I will call “the guardian” without naming her), who had been appointed when the proceedings were issued. TL’s parents were also legally represented.

Both TL’s parents and the guardian opposed the local authority’s plan to remove TL from his parents’ care. The guardian proposed that he should remain at home under an ICO. The local authority, I was told, did not feel able to share parental responsibility if TL was at home. In these circumstances, it “reluctantly” (the word used by its Practice Manager in her subsequent statement dated 15 September 2010) changed its care plan to seek an interim supervision order (ISO) with TL remaining at home. In the event, after argument, the FPC made an ICO on the basis that TL would remain at home.

The justices’ reasons record what occurred. The Lay Bench had read the papers, and did not hear any oral evidence. The only point at issue was “whether the home placement should be supported by an (ISO) or an (ICO)”. The essence of the justices’ reasoning is contained in paragraph 12 of their reasons, in which they state: -

“... It is our view that an (ICO) is necessary to allow the local authority to share parental responsibility whilst the assessments are concluded. Both parents have suffered difficult lives with poor parenting themselves and both are relatively young. At times, they have shown a good level of understanding of (TL)’s needs, but at other times, their own needs have taken priority. It is this area which gives rise to concern because of the parents’ volatility and inconsistency in parenting. ”

The justices made the ICO until 3 November 2010, and directed a review on 28 September at 2.00 pm with the parties to attend at 1.00 pm. The ICO was, however, predicated on the indication given by the parents – as recorded by the justices - of “their agreement to sign a written agreement, a draft of which has been shown to them”. The justices also gave a number of directions which it is not necessary for me to set out.

It is plain from the justices’ reasons that whilst they accepted that TL was to remain at home, this was not an issue which they were required to decide as a matter of contest between the parents and the local authority. The justices were plainly presented with an agreement about where TL should live: the only issue was the legal framework under which he was to reside at home. In this context, they made a direction under section 38(6) of the Children Act 1989 that TL was “placed with his parents for the purpose of the assessments” which were to be carried out “subject to the terms of the written agreement”.

So far, there is nothing exceptional about the case. However, when the social work team returned to their offices after the court hearing, there was a further discussion of the day’s events. The offices, I was told, are “open plan” and the team’s conversation was overheard by a local authority agency employee, who had previously worked for CAFCASS but who had no connection with TL’s case. This individual, whom I will call X and who has to date remained anonymous, took it upon herself – without discussing the matter with anyone - to send an anonymous Email to the Deputy Operational Director (South) of CAFCASS (CDODS). It is timed at 14:38 on September 8 2010 and its subject is “You are not hearing this from me”. The relevant part of the Email reads: --

“…. there is a case here where (the guardian) [name] is causing upset– child who should come out on an ICO, but this has been blocked by (the guardian) [name] who wants the child at home on PWP and ICO. I have read the first statement and the child’s life is hell. He has even clung to professionals not wanting them to leave!! Case name is TL [name and date of birth given]. My manager does not feel able to take it up with [the guardian’s] line manager – name given] because of all the usual reasons. Is there some way [the CAFCASS Area Head of Service (name given)] could get someone to have a look at this case? (Emphasis supplied)

Kindest regards

I need to remain anon on this.”

The response from CDODS is timed at 14:57 and is very short. It reads: “No problem, / Thanks”. At 15.30, X acknowledged CDODS’s Email with the words “Thank u”.

CDODS than discussed the matter with the CAFCASS Area Head of Services, whom I call CAHS. The latter agreed to speak to the Guardian when he had had the opportunity of looking at the papers.

There is a dispute between CAHS and the Guardian about what was said in the conversation between them, which took place on the following day, 9 September 2010. For reasons which I will explain later, I have not heard oral evidence and I have not sought to resolve that dispute.

CAHS asserts that the guardian told him she had originally asked the local authority to agree to a placement of the child with his parents in a residential setting, but that when they had demurred and said this was not possible she had advised that TL should remain at home under an ICO. CAHS says the guardian accepted that due to time pressures she had not read the local authority statements properly in preparation for the hearing, and that she had made her recommendation after discussions at court and after interviewing the parents. CAHS says it was clear that a proper risk assessment had not been undertaken. He also says that the guardian accepted that her decision could be seen as “controversial”, and that she agreed “to reflect” on her position.

CAHS further says that he informed the guardian he would be discussing the matter with her line manager, and in the meantime, he would ask another CAFCASS Officer to oversee the case. He then discussed the case with CDODS, and a third manager. the CAFCASS Operational Director; and it was agreed that a letter should be sent to the court. CAHS is clear that he did not instruct the guardian to withdraw from the case.

The guardian’s version of the conversation is different. She denies the allegation that she had not read the papers. She says she had been supplied electronically with the court bundle, the social work statement, the care plan and the application in form C110. She had also been provided with the CVs of the various experts (adult psychiatrists) who were to report on the parents in the proceedings. She said she had read these before she attended court, and at court received hard copies which she read. She also had a detailed discussion with counsel instructed on behalf of the child and discussed the matter with the parents. She says that she considered all of the risk issues set out in the court papers but was not persuaded that TL should be removed from his parents. She says she was also aware that a local family centre had begun their assessment of the parents. She agrees she discussed other options with the local authority’s social workers – for example a residential placement - but without success.

During the afternoon of 9 September 2010 CAHS spoke to the local authority’s Head of Integrated Children’s Services (LAHICS). The telephone call was initiated, I was told, in relation to a matter which had nothing to do with TL. However, according to a statement made by LAHICS on 29 September 2010, CAHS informed her during the course of the conversation that CAFCASS had reviewed the TL case file and would be “writing to the court” because they had concerns about the safety of the decision making.

On two occasions during the following day (10 September 2010) LAHICS says that CAHS informed her that CAFCASS had reviewed the decision making process in TL’s case. On the first occasion LAHICS said that the matter had been brought to her attention by CAFCASS: on the second occasion she said that CAFCASS had decided to approach the court to express their concerns about the decision making and to recommend that the court “disappoint” the guardian.

The letter from CAFCASS to the court is dated 10 September 2010. It is addressed to the Chair of the Bench of the FPC, was copied to LAHICS and to TL’s solicitor, but not to the parents or their lawyers. It was written by CDODS, who described herself in it as “Head of Service Quality and Improvement South”, It reads as follows:

“I am writing to you regarding the above case and to highlight a number of concerns that have arisen following a management review of this case. As you will be aware, [name] was the Guardian appointed to represent (TL) in these proceedings. The case plan (sic) and documentation were reviewed by a CAFCASS manager on 8.9.10. The review resulted in a discussion between the Guardian and the Operational Head of Service for (the local authority) regarding the risk assessment, and decision making on the case. Specific to that discussion was the Guardian’s recommendation to leave the child at home on an ICO despite the significant evidence and concerns expressed by Children’s Services social worker. The concerns were clearly outlined in the Local Authority’s statement to court.

In the conversation to the CAHS [name given] (the Guardian) [name given] noted that she had not read the papers thoroughly before making her decision; had not had time to fully assess the risks and was not sure that her risk assessment kept the child safe. CAFCASS therefore wishes to inform the court that the recommendation of the Guardian in his case may be unsafe and that the child’s placement at home is inappropriate. Given the concerns outlined by the local authority, CAFCASS is of the opinion that the child should not remain there. CAFCASS have therefore notified the local authority of the above.

Following discussion with (the Guardian) and given the circumstances, she has agreed to be de-appointed from the case of TL and this is being communicated to the Solicitor for the child. Should the court agree to de-appointment in the circumstances, CAFCASS will be able to advise the court of the guardian who could now take this case.

CAFCASS sincerely apologises for the need to change Guardian but believe that in the circumstances this will ensure that the court is provided with appropriate advice and support to ensure that (TL) is protected.

Should there be any further queries in relation to the appointment of another Guardian, please contact (the guardian’s line manager - (name and telephone number given). In the event that a senior manager is requested in respect of this decision, please contact myself (name and telephone number given)

Yours sincerely,”

By order dated 15 September 2010 the clerk of the FPC, (apparently without notice to any of the parties (notably, of course, the parents)) terminated the appointment of TL’s guardian and on the same day appointed another person as guardian “for the hearing on 16 September only” and yet a third person as TL’s guardian “in the proceeding for a care order with effect from 17 September 2010”.

On 15 September 2010 the local authority’s Practice Manager made a statement in which she invited the FPC to “reconsider” the decision which it had made on 8 September 2010 to allow TL to remain at home. Inter alia she states: -

“The appointed children’s guardian supported the decision that (TL) be placed with his parents on an (ICO) on 8 September 2010. The local authority understand that CAFCASS have reviewed this file and support the local authority’s are plan for (TL) to be placed in a foster care placement with an (ICO). ”

At the instance of the local authority, there was a further hearing on 16 September 2010 at which the FPC was, I was told, concerned to understand the circumstances in which the decision made on 8 September 2010 was now being challenged without an appeal and with no new grounds of risk being advanced, only a management review by CAFCASS and communication between CAFCASS and the local authority. This was undoubtedly one of the factors which influenced the FPC to transfer the case to the county court. In its reasons for doing so, the FPC said this was

“…..due to the complexities of the issues raised in this case, namely the suggestion made in court that there had been contact between Social Services Managers and CAFCASS managers since the last hearing affecting the person to be appointed to be the guardian and the view put to the court on behalf of the child. The court believes this is an issue involving a substantial question of public policy which needs to be determined at a higher level of jurisdiction than the (FPC)………”

On 23 September 2010, His Honour Judge Coltart directed the local authority to file and serve statements from everyone in its employ who had discussions with any manager or employee of CAFCASS concerning TL between 8 and 10 September 2010. He also ordered CDODS to file and serve a statement setting out her discussions with any employee of the local authority. Judge Coltart also ordered a statement from the guardian.

Unsurprisingly, the parents were deeply troubled by these events. On 5 October 2010, counsel for the father filed a position statement, in which she emphasised that there had been no breaches of the written agreement between the parents and the local authority and added: -

“There is a real issue of transparency and fairness which has arisen as a result of the perception that CAFCASS management have overruled an experienced guardian and in doing so have wholly undermined the guardian’s independent role within these proceedings. The local authority, by seeking to change their position, following communications with CAFCASS outside court have, at the very least, added to the perception that there is unfairness and collusion preventing a fair decision making process. The impact and pressure that this places upon parents involved in care proceedings for the first time and facing the forced removal of their son cannot be under-estimated. The matter is of such importance to these parents, as well as having wider serous public policy implications, that it requires the most anxious scrutiny of the court.”

Counsel for the mother, in her position statement, strongly attacked the actions of CDODS and CAHS and sought a guardian from the National Youth Advocacy Service (NYAS). The mother took a similar position to that of the father -

“It is submitted that the local authority’s request to revisit TL’s placement has arisen not out of any concern for the parents’ parenting but rather as a result of a very concerning series of events between managers of CAFCASS and the local authority which should cause the greatest concern to this court…..”

On 7 October 2010, Judge Norrie requested CAFCASS to appoint a guardian who was not managed by the management team currently involved in the case, and CAFCASS agreed. The local authority also indicated that they were no longer seeking the interim removal of TL from his parents’ care. Judge Norrie gave other directions in the case which I need not set out, save that CAFCASS was joined as an intervener in the proceedings “to deal with the allegations and concerns about the management of the case”

In a position statement dated 13 November 2010, CAFCASS acknowledged that “mistakes were made”. It acknowledged that the letter from CDODS should not have been sent “in the form that it was”. The proper way to bring concerns to the attention of the court was “to make a formal application on notice”. With hindsight, it acknowledged that “concerns should not have been raised with the local authority in the way that they were”.

CAFCASS insisted that the letter to the court was not intended as an application to remove the guardian. It accepted, however, that it should have been copied to the parents’ solicitors. CAFCASS agreed that there should not be communication between its management and the local authority about specific aspects of open cases, and that any concerns about the practice of a practitioner should be resolved internally and then, if necessary, with an application to the court. CAFCASS also accepted that the legal position remained that the guardian was appointed by the court and that it was for the court to make the decision about removal.

On 15 November 2010, Judge Norrie joined X (the anonymous source) as an intervener. On 16 December 2010, X filed a position statement in which she described herself as “the referrer”. It begins with a statement of regent: -

“The referrer wishes to express her sincere regret to all parties, but in particular the parents and the Court that in making a referral to the management of CAFCASS in the way that occurred, she has initiated a chain of events which has caused the court to spend time on an issue which is by its nature a distraction from the consideration of the welfare of the child the subject of these proceedings.”

In retrospect, X accepted that she “should have gone through official channels” and confirmed that her Email was sent without any prior discussion of its contents with any social worker from the local authority. She has had no further contact with CAFCASS since making the referral and will play no further part in the case.

On 17 December 2010, Judge Norrie directed (inter alia) as follows:

“Upon the court directing that the issues of the anonymity of the referrer, and the public policy issues which arise as a result of the referral being made, and culminating in the then guardian being de-appointed (hereinafter referred to as “the Public Policy Issues”) … be dealt with separately from the substantive case relating to TL

[they] be listed for hearing before the President of the Family Division….”

On 23 December 2010 junior counsel for the father produced what is described as a “statement of issues in relation to public policy which had been “approved and adopted” by the mother. Six items were listed. They are: -

The initial response to this document from CAFCASS is dated 11 January 2011 and was drafted by leading counsel. It identified the points of principle as the following: -

The position statement concludes by suggesting that as a consequence of such work levels and demands that are currently well known within the care system, issues surrounding quality assurance are of ongoing importance within CAFCASS, which would welcome guidance from the High Court) on the issues outlined.

The position of the local authority concentrated on the propriety of the communications between CAFCASS and its officers in relation to live issues before the court.

I gave directions on 19 January 2011. I directed a statement from CAFCASS’s Director of Operations and I ordered that the papers be served on the guardian, who was to be at liberty to make a statement and, if so advised, to apply for intervener status. At the same time, I made it clear that I was not minded to engage on a fact finding exploration of the history of the matter, and would hear the case on submissions. I allowed the intervention of the National Association of Guardians and Reporting Officers (NAGALRO).

In a case such as the present, it is necessary to go back to the source material. CAFCASS is a body corporate created by section 12 of and Schedule 2 to the Criminal Justice and Court Services Act 2000 (CJCSA 2000). The principal functions of the Service are set out in section 12(1). They are: -

CJCSA 2000 Schedule 2 deals with the constitution of CAFCASS, the remuneration, etc of its members, procedure, staff and other officers, delegation, payments to the Service and . Paragraphs 9 onwards read, where material, as follows: -

“Supervision

9(1) 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.

(2)

In particular, the directions may make provision for the purpose of ensuring that the services provided are of appropriate quality and meet appropriate standards.

(3)

The Service must provide the Lord Chancellor with any information relating to the performance of its functions which he may from time to time require.

Ancillary powers

10(1) 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.

(2)

That includes, in particular—

(a)

holding land and other property,

(b)

entering into contracts,

(c)

investing sums not immediately required for the purpose of performing its functions,

(d)

accepting gifts.

(3)

But the Service may not borrow money, whether by way of overdraft or otherwise, without the approval of the Lord Chancellor.

Directions

11(1) Different directions may be given under this Schedule for different purposes.

(2)

Directions under this Schedule may be either general or special.

Reports and accounts

12(1) The Service must make a report to the Lord Chancellor in respect of each financial year on the performance of its functions.

(2)

The Lord Chancellor may give directions as to—

(a)

the information to be given in the report and the form in which it is to be given, and

(b)

the time by which the report is to be given.

(3)

The Lord Chancellor must—

(a)

lay a copy of the report before each House of Parliament,

(b)

arrange for the report to be published in a manner he considers appropriate.

13(1) The Service must—

(a)

keep proper accounts and proper records in relation to the accounts,

(b)

prepare in respect of each financial year of the Service a statement of accounts, and

(c)

send copies of the statement to the Lord Chancellor and to the Comptroller and Auditor General before the end of the month of August next following the financial year to which the statement relates.

(2)

The statement of accounts must comply with any directions given by the Lord Chancellor as to—

(a)

the information to be contained in it,

(b)

the manner in which the information contained in it is to be presented,

(c)

the methods and principles according to which the statement is to be prepared,

and must contain any additional information the Lord Chancellor may require to be provided for the information of Parliament.

(3)

The Service must, in accordance with directions given by the Lord Chancellor—

(a)

appoint an auditor who is not a member of the Service’s staff, and

(b)

ensure that the auditor makes a report to the Lord Chancellor about the preparation of the accounts and about the statement of accounts.

(4)

The Comptroller and Auditor General must examine, certify and report on the statement of accounts and must lay copies of the statement and of his report before each House of Parliament…….

Complaints

15 The Service must make and publicise a scheme for dealing with complaints made by or on behalf of prescribed persons in relation to the performance by the Service and its officers of their functions.

Status

16 The Service is not to be regarded as the servant or agent of the Crown, or as enjoying any status, privilege or immunity of the Crown; and its property is not to be regarded as property of, or property held on behalf of, the Crown.”

The current rules are the Family Procedure Rules 2010, which came into force on 6 April 2011, notably Parts 12 and 16, and Practice Directions 12A and 16A.

Two points are, I think, worth noting at this stage. The first is not strictly a point of statutory construction, but remains of importance nonetheless. The acronym CAFCASS stands for Children and Families Court Advisory and Support Service. The penultimate “S” was, as is well known, inserted by the late Bracewell J and the Children Act Advisory Committee. But in my judgment, one of the functions of CAFCASS – indeed one of its principal functions - is to advise the court on what is in the best interest of the child whom it represents in the proceedings. It is, in my judgement, a court advisory service.

The second point is closely related to the first. When the court appoints a guardian in specified proceedings under section 41(1) of the Act, it does not appoint CAFCASS to that role: it appoints “an officer of the Service or a Welsh family proceedings officer”. In my judgment, this is important.

In 2009, it will be recalled that the previous administration proposed an amendment to section 41 of the Act to substitute the organisation for the officer – ie. CAFCASS instead of the officer. That proposed amendment met with very substantial resistance – I spoke against it myself – and was withdrawn. But the point has a two-fold importance. Firstly, it is the court which appoints the guardian, and the court alone which can revoke or change such an appointment: secondly, every binding decision about a child is made not by CAFCASS, nor by its officer nor by the local authority but by the court.

We are thus, predominantly, in the area of judicial decision making. The guardian and the local authority may advise – that is their function – but the court decides. The balance of this judgment will be written with these thoughts very much in mind.

The position of the local authority

The local authority concentrated on the following question, on which it sought guidance: -

“To what degree, if any, is it proper and compatible with the rights of parents within care proceedings to a fair and transparent decision making process for CAFCASS and the local authority management to discuss individual cases and the actions of guardians in individual cases?”

So far as X, the anonymous referrer is concerned, the local authority expressed a number of anxieties in its skeleton argument (which I have to say I share) but concluded that it was its intention to deal with X’s breach of confidentiality and failure to follow its internal referral procedures formally following these proceedings through its disciplinary process. For the reasons which I set out later, this seems to me the right approach.

I have set out above the discussions which took place between CAFCASS and the local authority in relation to this case. Those discussions have now been disclosed. The local authority’s case was that whereas the parents’ concerns were reasonable in light of what was previously known (or, more accurately, not known) to them, they can now be reassured that X will play no further role in the case, and that the local authority’s conduct was not influenced by CAFCASS. The local authority’s case is that whilst it was notified of CAFCASS’s decision to replace the guardian it did not influence it, nor did it have any direct knowledge of what took place between the guardian and her managers as a consequence of the internal CAFCASS review. Its case was that it was now able to dispel the parents’ suspicions that the local authority team sought to go behind the guardian’s recommendation.

In the trite phrase, the local authority in retrospect takes the view that it should have “stuck to its guns” on 8 September 2010 and have insisted that the conflicting opinions of the guardian and the local authority team be tested in the witness box.

The local authority is, however, critical of what it described as “the absence of transparency” in the process of the CAFCASS guardian placing his or her recommendations before the court. The argument runs on the following lines: (1) the justices’ reasons record what the justices have read and the evidence they have heard: (2) the local authority’s investigations are reduced to writing and are both filed and disclosed. Only the guardian’s decision making process is invisible, whilst at the same time carrying considerable weight with the court. The local authority therefore makes a number of suggestions for the reform of the decision and reasons form used by the FPC. These suggestions were designed to clarify the basis upon which the CAFCASS view has been informed for the hearing.

So far as X is concerned, the local authority proposed to ensure that employees in the area of child protection were reminded of and have greater knowledge of “whistle-blowing” procedures and how to access and utilise them.

The local authority submitted that CAFCASS should have returned the matter into court and that by allowing the local authority to do so it enabled allegation of collusion and inappropriate communication to be made.

So far as communication between the local authority and CAFCASS generally is concerned, the local authority’s case was that communication in relation to “live” cases is very rare, and usually relates to organisational as opposed to practice issues. There are, however, regular meetings between CAFCASS and the local authority which related to the allocation and management of private law cases: the local authority has participated in such meetings and would continue to do so, given its view that it was a fundamental principle of effective child protection that there should be proper communication between agencies charged with child protections.

The local authority referred me to a number of the recommendation about sharing information identified in Lord Laming’s reports into the death of Victoria Climbie, as well as to statements in the most recent edition of Working Together to Safeguard Children: A Guide to the inter-agency working to safeguard and promote the welfare of children of March 2010. . One citation from the latter is, I think, sufficient:

“1.10.

Promoting children’s well being and safeguarding them from significant harm depends crucially upon effective information sharing, collaboration and understanding between agencies and professions. Constructive relationships between individual workers need to be support by a strong lead from elected or appointed authority members and the commitment of child officers. ”

The local authority relied on these documents in asserting the need for communication within and between agencies involves with safeguarding children. As the same time, the local authority recognised that the information sharing process must be transparent, particularly in the light of the significant and increasing demands made on CAFCASS. Reference was also made to the report of the Public Accounts Committee on CAFCASS in November 2010 and my predecessor’s interim Guidance now reported at [2009] 2 FLR 1407.

The local authority pointed out that there was little guidance about how to manage disputes and / or disagreements between social services and CAFCASS within court proceedings. It made clear that it does not subscribe to the practice of managerial discussion between itself and CAFCASS which seek to influence or undermine the position of either in live cases. Such case specific discussion as there are should be part of the court process, and properly recorded. The overriding principle is that of transparency. Reliance was placed on the decisions of Munby J (as he then was) in Re L (Care Assessment; Fair Trial) [2002] 2 FLR 730 and of Charles J in Re R (A child: Care: Disclosure: Nature of Proceedings) [2002] 1FLR 755. Where there was a divergence of opinion, the matter needed to be openly explored within the court process. Any meetings at which the family’s future was being decided had to be conducted openly and with the parents able to participate directly or through their representatives. The witness box remained as a final resort the proper area for challenge.

The local authority concluded its submissions with its acknowledgement of the need for guardians to have an independent voice. Its only comment on Mr. Clark’s statement was to question whether in reality there is the time and opportunity for hard pressed guardians and their manages to go through the process he set out.

CAFCASS

CAFCASS helpfully put in a position statement drafted by leading and junior counsel and also responded to submissions filed on behalf NAGALRO. Mr. Clark put in a detailed statement and exhibited to it CAFCASS’ Supervision Policy, its Reporting to Court Handbook and its Case Recording Policy.

CAFCASS invited me to consider whether I could or should give general guidance surrounding its involvement in making recommendations to the court in family proceedings. In the context of this case, I took that to mean in circumstances in which there was a disagreement between the CAFCASS guardian and management.

In their position statement filed on behalf of CAFCASS leading counsel and her solicitors politely and accurately reminded me that I was not engaged on a fact finding investigation into the events which I have set out in some detail in paragraphs 4 to 24 above. It was not my function either to re-write CAFCASS policy, or to supplant the functions of the CAFCASS Board or those of its Chief Executive. These are all proposition which I accept and with which I agree. It is partly to emphasise the limited role which the judiciary has in the running of CAFCASS that I have quoted so extensively from CJCSA 2000.

Counsel submitted that in exercising its duties under CJCSA 2000 section 12 the aim of CAFCASS was to assure the quality of the work undertaken by individual guardians. It emphasised that the recommendations of the guardian were independent of the parties to the litigation. The point was made, however, that such recommendations could not be independent of the organisation which employs the individual. Guardians, it was argued, must be accountable to their employers for their acts and omissions, and the ordinary principles of employer’s liability must apply to them.

Inevitably, it was argued, guardians and their managers had discussions during the life of an individual case, and in the overwhelming majority of case reached consensus about the recommendation to be made. However, where there was a conflict between the view of the guardian and the view of his or her manager, the matter was more complicated. The question was fully dealt with in Mr Clark’s statement, to which I will turn in a moment. The ultimate submission, however, was that whilst there was a need for transparency, CAFCASS managers were entitled. In the interests of individual children or in the discharge of CAFCASS’s statutory functions generally, to communicate their views of a particular guardian’s work to the court and / or the parties. Added to which, of course, the court was entitled to bring a guardian’s appointment to an end and to hear evidence on issues in dispute in the event that the termination of a particular appointment was contested.

It was also pointed out – and Mr. Clark confirmed – that CAFCASS managers regularly had inter-agency / disciplinary meeting with local authorities; that such meetings were entirely appropriate and operated within the context of the strengthening of child protection procedures generally. The example was given of a guardian invoking the assistance of a manager in accessing local authority information. However, the corollary was that any such discussions would be noted and disclosable within the care proceedings.

Counsel recognised that disagreements between a guardian and his or her manager in respect of the former’s recommendations had to be placed before the court. The guardian was accountable for his or her own views and managers were not in a position to insist that the recommendations and conclusions of an individual guardian be adopted against his or her wishes. However, if the manager concluded that the recommendations were either flawed or irrational, or did not properly represent the interests of the individual child, then the proper course was for CAFCASS as a body to seek to intervene in the proceedings with a view to the manager’s analysis being brought to the attention of the court. Almost inevitably, it was argued, this would be ancillary to an application the particular guardian’s appointment should be terminated.

This, it was submitted, was a part of the responsibility which CAFCASS managers had. They needed to have the ability to communicate to the court and to the parties their views as to the inadequacy of an individual guardian’s work. Such disagreements were, however, rare.

These matters were al canvassed at length in Mr. Clark’s detailed statement, and I make it clear at once that I am grateful to him for the care which had had plainly taken. I also accept, without hesitation, his assertion that, like the judiciary, CAFCASS as an organisation seeks to cherish and preserve the independence of the guardian under the tandem model which, as I have stated on many occasions in the past remains the child’s best protection against poor social work practice. I also note in passing that Parliament has plainly taken the same view, since section 42 of the Act gives a guardian unprecedented powers of access to local authority documentation.

Mr. Clark makes clear that individual guardians employed by CAFCASS are subject to supervision by their service managers, and that the self-employed guardians are subject to a specified contract management process undertaken by a Service Manager working in the role of contract manager. He argues that the role of the manager (in general terms) is to promote good practice, and that that this is an entirely legitimate role for the manager to adopt.

It follows, Mr Clark argues, that where the manager and the guardian disagree there will be a discussion between them. He says that, in the overwhelming majority of cases, this will result in consensus. Mr. Clark sums this up in the phrase “quality assurance”, the laudable object of which is to ensure that CAFCASS fulfils its statutory obligations.

Mr. Clark, however, goes further than this. He states, more than once, that “if no agreement [between the guardian and his or her manager] is reached it is the line manager’s view that will prevail”. This proposition is enshrined in the CAFCASS Reporting to Court Handbook” of May 2010, which Mr. Clark appends to his statement.

Mr. Clark deals tactfully with the natural desire on the part of CAFCASS not to advertise a disagreement between a manager and a guardian. He argues that this is largely to protect the reputation of guardians. Sometimes, he suggests, where there are two or more possible ways of viewing a case, the proposal is that all the various options should be put before the court. This is a course, Mr Clark suggests, that judges have found helpful in making decisions which, as Mr. Clark is at pains to emphasise, “(are) entirely a judicial responsibility”.

Mr. Clark does not shrink, however, from the proposition that management advice and support “could, in extremis, take the form of a management instruction”. He emphasises that this course would be “exceptional and would only be taken in order to safeguard and promote the welfare of the child and only at the conclusion of full discussion about the case”.

Mr. Clark poses the questions I have already identified and adds to them. For ease of reference, I will repeat what Mr. Clark asks, namely: - : (1) in what circumstances it is legitimate and reasonable for CAFCASS managers (who are experienced social workers themselves) to discuss and / or assure the quality of court appointed guardians’ work? (2) Does decision making by a judge remove the need for discussion of an individual case by guardians and their managers? (3) If, as in fact occurred, managers have reasonable cause to believe that errors may have been made in the court process, or key facts made have been missed; what, if anything, should CAFCASS do about that? (4) How does the duty of full and frank disclosure to the court impact, if at all, upon communication between guardians and their managers? (5) Is the duty of full and frank disclosure mitigated in any way by the impact of employer / employee obligations? (6) Should a manager, for example, direct open attention to perceived sub-standard work by a guardian if, in his or her opinion, the same has occurred?

As to questions (1) and (2) it will come as no surprise that Mr. Clark’s view is that notwithstanding the role of the court in appointing the guardian, discussion and “quality assurance” of guardians’ reports are wholly compatible with the duties of CAFCASS under CJCSA 20000 and the Rules and entirely consistent with judicial decision making. As to question (3) Mr Clark, as I have already indicated, does not shrink from what he regards as the wholly exceptional position, after full discussion, in which “the manager’s conclusion is that the practice of the practitioner is so unsafe that it is necessary to limit their duties or to suspend”. Only at this point would an application be made to the court. Mr Clark repeats – and as the Handbook states - “where agreement is not possible the manager’s view will prevail”

In relation to the remaining questions, Mr. Clark’s views are, I think, those which I have already identified. Mr. Clark recognises a duty towards CAFCASS employees, and would be reluctant to criticise practitioners, or undermine their credibility in public.

Finally, Mr. Clark defends the regular bilateral and multi-agency discussions which CAFCASS managers hold with local authorities and, as he points out, with the judiciary (albeit, in relation to the latter these relate to administrative issues and not live cases). Normally, of course, these discussions concern system issues: whilst there may be reference to individual cases (in discussions with local authorities), this is normally in the context of illustrating an issue.

NAGALRO

The position adopted by NAGALRO was clear. The guidance sought by CAFCASS was. in effect, an attempt to weaken the statutory independence and autonomy of the court-appointed guardian in care proceedings; it was a further attempt to remove responsibilities from the named guardian and to substitute CAFCASS as the corporate body to discharge those functions. There was, NAGALRO submitted, no legal authority for such a policy, which contravened section 41 of the Act.

NAGALRO also submitted that paragraph 10 of Schedule 2 to CJCSA 2000 which I have largely set out at paragraph 20 above) was an operational provision relating mainly to the financial and practical administration of CAFCASS and did not overrule section 41 of the Act so far as the individual duties of the children’s guardian were concerned.

NAGALRO accepted that CAFCASS had a duty to provide officers to perform the functions laid down by CJCSA 2000 section 12, and that it has to maintain national standards for guardians, as well as operating effective disciplinary and complaints procedures in respect of its officers. However, NAGALRO reiterated its case that, once appointed by the court under section 41 of the Act, the responsibility for the case passed to the individual guardian, who was responsible to the court and the child the guardian represented

Equally, the termination of the appointment of a children’s guardian was not a matter for CAFCASS, but for the court. Neither CJCSA 2000 section 12 nor Schedule 2 paragraph 10 entitled CAFCASS as a corporate body to override the functions vested in the individual guardian by section 41 of the Act. It followed, NAGALRO argued, that Mr. Clark’s assertion “if no agreement is reached, it is the line manager’s view that will prevail” was contrary to section 41, and was unlawful.

In every case (of which the instant case, involving an oral report in an interim situation was an acute example) it was for the court to make the relevant decision. If the decision of the guardian was to be challenged, the court was the appropriate forum for that challenge.

NAGALRO accepted that agencies concerned with the protection of children must be able to discuss individual cases, but in the context of court proceedings any discussions between the guardian and the local authority should be minuted and if necessary disclosed to all the parties in the proceedings themselves.

Equally, NAGALRO submitted, the termination of the appointment of the guardian was a matter for the court alone. A disagreement between a CAFCASS manager and a court appointed guardian as to the recommendation made by the latter on the substantive application before the court could not be in and of itself a reason for the termination of the appointment save in the most exceptional circumstances.

In the circumstances, NAGALRO submitted, the court should decline to give guidance which would, in effect, approve the policy documents advanced by CAFCASS. In any event, there had not been a managerial review in the instant case, and CAFCASS has acted unlawfully in giving the impression in its letter to the court that CAFCASS was removing the guardian in the case. CAFCASS had thus failed in any event to act in a fair and transparent manner.

In summary NAGALRO submitted that the issues raised by the case required a clear restatement of the law relating to section 41 of the Act, and in particular a clear reiteration of the statutory independence and autonomy of the court appointed guardian.

The response from CAFCASS to NAGALRO’s submission was brief. The question remained: in the event that there were genuine concerns within CAFCASS surrounding the work of a court appointed guardian, what can or should be done within the proceedings in respect of those concerns?

There was, however, some common ground. The court appointed the guardian under section 41 of the Act, and CAFCASS nominated an officer of the Service to act. The court was also responsible for the termination of any appointment. CAFCASS was not required as a corporate body to discharge obligations under section 41 of the Act. However, CJCSA section 12 did envisage a statutory role for CAFCASS in safeguarding and promoting the welfare of children who were the subject of care proceedings.

CAFCASS acknowledged and asserted the independence of guardians in relation to the other legal parties to the case. Guardians were not, however, independent from the organisation which employed them or to which they contracted their services. The practice of the management and supervision of guardians had been a vital part of CAFCASS since its inception.

CAFCASS acknowledged that the statement at G48 of the Reporting to court Handbook could be expressed more clearly. Counsel suggested an alternative form or words, but retained the phrase “the line manager’s view will stand” in the event of an irreconcilable disagreement between the manager and the guardian.

Finally, CAFCASS made it clear that it was not inviting the court to approve its policy or otherwise, since it was recognised that CAFCASS alone (subject to the exercise of powers by the Secretary of State for the terms of its practice guidance to staff) was responsible for that policy. The fundamental questions, however, remained.

The parents’ argument began by stressing the serious – sometimes irrevocable - nature of care proceedings, and the engagement of ECHR Articles 6 and 8. It was, moreover, fundamental to litigation under Part IV of the Act that the work of the guardian could be assessed and if need be challenged within the court forum.

In the instant case, the process had gone badly wrong. From a hearing at which it had been agreed that the child should remain at home whilst the parents engaged with professionals to work on their parenting skills, the parents were faced rapidly with another hearing in which the local authority again sought to remove the child on what were identical facts. In these circumstances the parents were particularly concerned; (a) to know that X would have no involvement with them “ever again” and; (b) to be sure that lessons had been learned from what had occurred so that there would be no repetition.

The parents emphasised the guardian’s independence, and whilst recognising that line management for the purposes of quality assurance, support, professional development and training had an essential place, joined issue with Mr Clark’s statement that in the event of an irreconcilable disagreement between guardian and line manger, the latter’s view would prevail. This statement, it was argued demonstrated an “irreconcilable tension” between CAFCASS’s interpretation of the role of line manager and the independence of the court appointed guardian. Their view was that if such a disagreement arose it was the guardian’s view which should prevail, and that if the line manager took a different view, he or she should consider putting that view into writing and disclosing it to the parties and to the court.

The parents accepted that in the inter-disciplinary structure of family law, it was inevitable that local authority practitioners and representatives of CAFCASS (notably guardians) would conduct regular meetings to discuss constructive ways of working together. However, discussion of individual cases was a different matter and should not occur without good reason. If such discussions did take place they should be transparent, and if need be, discussed in advance before the judge.

Unsurprisingly, the parents were greatly exercised by the actions of X, and wanted to know her name so that they could be certain she was to play no further part in their case. I had jurisdiction to identify her, and should do so.

The guardian was in a difficult position, being without access to a number of the papers, and, as she stated, to CAFCASS premises and other members of staff. Her view was that if the management of CAFCASS was to have a role in reviewing the reports and / or the opinions of children’s guardians then some consideration needed to be given to the basis upon which this was done – and to a proper process, which would involve as a minimum the manager in question having made full enquiries, having read at least as much as the guardian and having discussed the case fully with the guardian.

The guardian was critical of my decision not to investigate the factual matrix of the case, but identified two issue of important “public policy” namely; (1) whether the systems and degree of managerial control within CAFCASS were compatible with the role of the guardian under section 41 of the Act; and (2) the extent to which it was proper and compatible with parental rights within care proceedings for CAFCASS and the local authority to discuss individual cases.

Although I received a lengthy skeleton from the anonymous referrer, I do not propose to summarise its contents.

For the reasons which I will explain in a moment, I agree with the local authority that the conduct of X whilst, on the face of it plainly reprehensible, is a matter between her and the local authority. I do not, accordingly, propose to adjudicate on the identify of X.

I have also come to the conclusion that, as drafted, the remaining issues identified by the father in paragraph 33 above are not properly justiciable. The judiciary neither runs nor funds CAFCASS. Although both my predecessor and I have reached agreements with CAFCASS designed to assist it in recent difficult times, it is not for me, I think, to discuss in a judgment issues which are overtly political.

That said, anything to do with statutory interpretation or the role of the court in care proceedings seems to me properly within my domain, and in my judgment the key question thrown up by this case is that posed by CAFCASS, namely (and I paraphrase) what should occur in care proceedings when there is an irrevocable disagreement between CAFCASS the body and the individual guardian appointed by the court under section 41 of the Act? It is this issue which I have decided I can properly address.

My decision not to hear oral evidence or to make findings of fact is, of course, bound up with the issues which, in my judgment, are properly justiciable in the case as it is presented to me. Thus it seems to me that the question of the identity of X is not a matter which is justiciable by me in the instant proceedings, and about which I should not make findings. X, in my judgment, falls to be dealt with internally by the local authority. It knows her identify: it knows what she did. Whether what she did falls within or without any guidelines promulgated by the local authority seems to me a matter of the local authority. Whether or not she is in breach of her contract of employment, or has broken any other of the terms of her employment seem to me matters with which the local authority should deal.

After considerable reflection, I simply do not see any proper mechanism within the existing proceedings for X to be identified. There are, moreover. only two reasons for identifying her within the care proceedings. The first is that the parents are entitled to be assured that X will play no further part in the proceedings. They say, in effect, that the only basis upon which they can properly be so assured is if they know X’s identify. I do not agree. They have the assurance both from X herself and from the local authority. In my judgment they do not need any further reassurance. There is, in my judgment, no bad faith in the instant case established against any of the social workers or against local authority management, and in my judgment, the local authority’s assurance should be accepted.

The second basis for identification is that X asserts in her Email that she had read the social worker’s statement. She had thus breached the confidentiality of the proceedings. This, if true, is a serious matter, but it goes to the same point. X’s views are irrelevant to the judge’s decision, and there is no attempt, for example, to summon X for contempt.

My principal reason for not hearing oral evidence, however, is that quite apart the length of time which would have been taken in so doing, it does not seem to me that the critical issues in this case depend upon judicial findings of fact in children’s cases, there is rarely one “right” answer. Usually, as has been said many times, the choice is between two more or less unsatisfactory answers. There will thus inevitably be cases in which there is a legitimate internal disagreement about the welfare of a child within CAFCASS. Sometime management will be “right”: sometimes the guardian will be “right”. What occurs should not, in my judgment, depend upon such matters: or, to put the matter another way, the same procedure should apply however the dispute arises.

In any event, the ultimate decision is not for CAFCASS nor for the guardian but for the court.

I begin by going back to the start of this judgment. What happened in this case should not have occurred. Quite apart from the activities of X, the letter written by CDODS [the CAFCASS Manager] should not have been written, and an application should have been made by CAFCASS to the court making it clear that there was a disagreement between CAFCASS management and the guardian over the latter’s recommendation. The issues should have been placed transparently before the court, and the court’s decision on them invited.

In my judgment, there is nothing unhealthy or wrong about a disagreement between professionals in care proceedings. As I have already stated, there is frequently no unequivocally right answer in such cases. As Mr. Clark indicates, a court will often welcome an elaboration of the issues, and the fact that two different minds have reached different conclusions on the same set of facts is not a matter of criticism. What, however, to my mind is crucial is that the process should be both transparent and fair.

I am, for the purposes of this part of the argument, assuming that both the guardian and CAHS (the local head of CAFCASS who interviewed the guardian) had a point. Where I struggle with Mr. Clark’s statement is his assertion that in these circumstances it is automatically the view of the Manager which will prevail.

I am the first to acknowledge that CAFCASS as a body must – in the case of guardians both employed and self-employed - monitor the quality of the work which guardians undertake. The words “quality assurance” have been misused – see Re G and B (Disclosure: Protocol [2010] EWHC 2630 (Fam); [2011] 1 FLR 1089 - but the function is both important and a part of the structure of CAFCASS. However, in my judgment it has to be balanced against the independence of the guardian appointed by the court.

Striking the balance is not always easy, but where the two come into conflict, it does not seem to me that the views of the manager should invariably prevail over those of the independent guardian. In any event, as I have already indicated, the final decision is for the court – not for either guardians or their managers. Thus whilst I see the force of the argument that an employer (CAFCASS) must assure quality, it does not follow in my judgment that the independent views of the employee (the independent guardian appointed by the court) should invariably and inevitably be subservient.

I test this proposition by looking at the statutory provisions, and at the agreement which I reached with (inter alios) the Chief Executive of CAFCASS on 1 October 2010. I have already set out the former. From the latter., the following extract is, I think, sufficient: -

“While this Agreement reminds courts of their proactive role, it is not intended to diminish the role of the guardian. On the contrary, although the court will at an early stage, and throughout the proceedings indicate to the guardian and the parties the issues which the court perceives as likely to determine the outcome of the case: -

(a)

nothing in this Agreement is designed to prevent or inhibit the guardian identifying and investigating other issues which the guardian perceives to be necessary for the fulfilment of the guardian’s duty to safeguard and promote the welfare of the child……”

Furthermore, the agreement was accompanied by a joint message from the Chief Executive and myself. I was particularly concerned to reassure guardians that judicial case management did not impinge upon their traditional

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. I therefore agree with Mr. Clark that the proper course, in the event of an irreconcilable difference of view is for CAFCASS to apply to intervene, 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. 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.

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.

So what occurred should not have happened. Should such events arise again, they will not, I hope, be repeated.

Discussions between the local authority and CAFCASS about “live” cases

Family law is multi-disciplinary and cooperative. It is inevitable and quite proper that officers of CAFCASS and members of the local authority will meet and discuss matters of mutual interest. The same applies to any professional body engaged in family proceedings. I agree with the general consensus, however, that where the topic under discussion is a “live” case – that is a case before the court - such conversations should be (a) rare; (b) strictly necessary for the proper progress of the case; (c) minuted; and (4) disclosed to all the other parties in the proceedings and available, if required, to the court.

Despite the confidentiality of the proceedings overall and the fact that the hearings take place in private, the watchword of family justice is “openness”. Within the context of the proceedings, each party must know what is going on. In the instant case, it is quite shocking that the parents were kept in ignorance of what was happening. Thanks to the orders made in the county court, however, the matter has now been opened up, investigated, and, I hope, clarified.

The “Transparency” of CAFCASS Reporting

I do not accept the argument advanced by the local authority and summarised in paragraph 49 of this judgment. The reasoning of the CAFCASS guardian, whether given orally or in writing is always open to challenge in cross-examination, which can always go to method. Added to which, of course, where the report is in writing, good practice requires the investigative and reasoning processes to be set out. Once again, the decision is for the court, which is heavily dependent upon the quality of the advice it receives.