In this important case heard by the President of the Family Division concerning the independence of Guardians appointed to act for children in family cases, no fewer than 4 Members of Chambers were instructed. Adam Smith represented a County Council, Luisa Morelli was for the mother, Martin Downs (pro bono) was for the Guardian with whose opinion Cafcass management disagreed and Jane Peckham was for the Guardian who had been appointed in her place.

In his Judgment in Re TL (Children: Disputes between Cafcass and the Guardian) [2011] EWHC given on 4 July 2011, the President of the Family Division supported the independence of Guardians appointed to act for Children in family cases and said that in the event of disagreement with Cafcass, the views of Cafcass management would not prevail but rather the competing positions should be put before the Court for their consideration.

This was a case concerning care proceedings brought by A County Council [ACC] concerning TL. At the initial hearing ACC sought an ICO and the removal of the child. This was opposed by the parents and the Children’s Guardian. After discussion at Court ACC modified their position and agreed to TL staying at home under an Interim Supervision Order. The Guardian argued that there should be an interim care order. The Court agreed and the order was made.

Upon their return to their open plan office, the social workers were overheard by an agency worker, X talking about their concerns. X took it upon herself to email a senior manager in Cafcass urging her to look at the case.

Senior Managers in ACC and Cafcass spoke to each other and Cafcass management then wrote to the Court but not to the parents or their lawyers informing them that the recommendations of the Guardian maybe unsafe and that the Guardian had “agreed” to be de-appointed. The Court appointed a new Guardian and the matter was then listed for a further hearing at which the parents became aware for the first time what was afoot. ACC subsequently decided not to challenge the placement of TL with the parents.

In his Judgment, the President, who described the issues as both Important and difficult said that it did not seem to him that CAFCASS obeyed its own rules, “It was not for CAFCASS to replace the guardian: it was not for CAFCASS to substitute its views for those of the guardian. The guardian may have been right – she may have been wrong. It does not seem to me – although I have not, quite deliberately, made findings of fact – that CAFCASS followed a transparent procedure. Added to which, of course, it was complicit in the failure to notify the parents of what was going on.”

The President stressed the independence of Children’s Guardians and the personal nature of their appointment as enshrined in section 41 of the Children Act 1989 and gave the following guidance:

Disputes between CAFCASS the body and the CAFCASS guardian appointed by the court under section 41 of the Act.

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?

1. In the event of disagreement, the ultimate decision is not for CAFCASS nor for the guardian but for the court.

2. The issues should be placed transparently and fairly before the court, and the court’s decision on them invited.

3. There is nothing unhealthy or wrong about a disagreement between professionals in care proceedings. There is frequently no unequivocally right answer in such cases.

4. The President does not accept that, in the event of disagreement, it is automatically the view of the manager which will prevail (despite the wording of the CAFCASS Reporting to Court Handbook” of May 2010).

5. CAFCASS as a body are entitled to monitor the quality of the work which guardians undertake but this has to be balanced against the independence of the guardian appointed by the court.

6. 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. 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.

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

7. 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. 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.

The “Transparency” of CAFCASS Reporting

8. The President rejected the argument that there was an absence of transparency in the process by which CAFCASS guardians place their recommendations before the court. 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.