Family Law

In a High Court judgment handed down yesterday, Sir Nicholas Wall, President of the Family Division, underlined the independent status of the Children's Guardian.

The issue arose in a case where a local authority and Cafcass managers communicated between themselves, without reference to the parent's, child's solicitors or to the court, and arranged for the removal of a children's guardian who had successfully opposed the local authority's interim care plan in court.  

Sir Nicholas held that Cafcass cannot remove guardians from cases before the court, nor can it substitute a corporate or organisational view for the court-appointed guardian's view of what will be in the best interest of the child.  

The President did not support Cafcass's assertion that a manager's view would prevail in any disagreement between manager and guardian. The proper and transparent course is for the Cafcass manager to go to court and explain why they have a contrary view. It will then be for the court to decide on the basis of all the evidence before it. 

In his judgment Sir Nicholas stated: "I yield to no-one in my view that the guardian's independence needs to be cherished."  He re-iterated how important it is for children that guardians can exercise independent judgment when working with solicitors in the ‘tandem model' and that this "remains the child's best protection against poor social work practice".

Sir Nicholas called it "shocking" that the parents were kept in ignorance of the discussions and was particularly critical of the lack of transparency and fairness in the case. 

Nagalro, the professional association for children's guardians, successfully applied to intervene in the case. It argued that Cafcass guidance to its staff was unlawful as it allowed managers to change a guardian's recommendations where there was disagreement between them. Nagalro say its members have been put in a position of professional conflict as they risk being in breach either of their organisational duty to Cafcass as their employer or their statutory duty to the court as set out in s41 Children Act 1989.  

Ann Haigh, Chair of Nagalro, commented: "We welcome this judgment and its clear statement of the boundaries between organisational and professional accountability. It is much needed and we are delighted that it fully supports our view that personal responsibility and the professional judgment of skilled and independent practitioners offers the best protection for children."

"We expect Cafcass to review its organisational policies to take account of this judgement and to ensure that all managers and practitioners fully understand the importance of the professional independence of the Children's Guardian role and their proper relationship with the court."

Sir Nicholas's judgment makes it clear that although Cafcass as an organisation has a role in quality assuring the work that guardians undertake, this must be balanced against the guardian's independence.  In the judgment he emphasises that his agreement with Anthony Douglas, Chief Executive of Cafcass, of 1 October 2010, was designed to assist with the increasing pressure on Cafcass from rising numbers of cases, but it specifically states that it should not inhibit a guardian from investigating issues that he or she sees as necessary to safeguard the welfare of children:  "Nothing in the Agreement fetters the responsibility of the children's guardian independently to represent the interests of the child in accordance with the statute and court rules."