Practice and Procedure


PUBLISHED March 17, 2003

CAFCASS was not under an obligation to make one of its officers available immediately for appointment as the children's guardian in specified proceedings when requested to do so by the court.Conjoined applications for judicial review in proceedings for the compulsory removal of children from their homes under interim care orders. In one case the interim care order ('ICO') had been granted after the children had been removed first into police protection and then by way of an emergency protection order. In the other the child had remained with her mother in a refuge following the making of the ICO but was later removed by the local authority pursuant to the ICO. In each case the ICOs had been granted before a guardian had been appointed. Solicitors acting for the children in each case had not opposed the local authorities' applications for ICOs. The applicants contended that, when requested by a court to do so, CAFCASS was under a legal obligation to make one of its officers available for the appointment by the court as a guardian for the purposes of specified proceedings, as defined by s.41(6) Children Act 1989, and to do so immediately. CAFCASS disputed that it had to make an officer available on that time scale.HELD: (1) It was important to note that: (i) the decision-maker as to whether there ought to be an order entitling a local authority to place a child away from its family was the court and only the court; and (ii) the decision maker as to where a child who was the subject of an ICO should live was the local authority. The duty of the guardian was to safeguard the interests of the child. The guardian was not a decision maker as to what, if any, order was to be made or as to the terms of a care plan. (2) If the applicants were correct the effect would be that CAFCASS would have to make arrangements that resulted in it having sufficient officers to enable it in all cases throughout the country to make one available for appointment immediately upon request from the court. This plainly had staffing and resource implications. (3) The time-limit argued for by the applicants did not appear anywhere in the relevant legislation, that being s.12(2) and Sch.2 Criminal Justice and Courts Services Act 2000, s.41 of the 1989 Act and r.4.10(1) Family Proceedings Rules 1991 SI 1991/1247. The statutory language pointed to the conclusions that: (a) there could be a gap between the request made by the court and CAFCASS making an officer of the service available for appointment as the guardian; and (b) the response of CAFCASS should be as soon as practicable after the request was made. (4) There was no need to imply that CAFCASS had the immediate duty or obligation alleged by the applicants in order to make the statutory scheme work properly and fairly. (5) For those reasons CAFCASS did not owe the duty that the applicants alleged.Applications dismissed.

[2003] EWHC 235 Admin